What is a Worksite Enforcement Audit
Worksite enforcement audits are performed by ICE’s Homeland Security Investigations (HSI) teams. The audit focuses on a business’ I-9 process. ALL EMPLOYERS are required to verify every employee’s authorization to work in the United States. This law is designed to protect American workers from the interference of unauthorized foreign workers and maintain the integrity of the American wage rate. The I-9 Employment Eligibility Verification form is filled out at the onset of employment and proof of identification and work authorization such as Social Security Card, Drivers License, Birth Certificate, Work Authorization Card, etc. are submitted. Employers can also choose to use E-Verify, which is a federal government driven program of verifying work authorization, in conjunction with the I-9.
KEY POINT: ALL EMPLOYERS ARE REQUIRED TO VERIFY EVERY EMPLOYEE’S AUTHORIZATION TO WORK IN THE UNITED STATES
E-Verify is expensive, so most employers choose to use the traditional I-9 program. In a worksite enforcement audit, HSI officers will show up to your business unannounced and present you with a Notice of Inspection, or NOI (contact our firm if you would like a copy of a redacted NOI). The NOI tells you exactly what HSI expects to receive from you during the audit and gives you three days to provide it. Generally speaking, you must provide I-9s for current employees, employees who have been terminated within a prescribed amount of time, copies of any work authorization documents that you kept as part of your I-9 program, and general company information such as articles of incorporation, tax I.D. numbers, etc. If you use E-Verify, a printout of those records will be required.
When you have the requested documentation together, you send it to the location dictated by the NOI where HSI will perform its initial investigation. Depending on what HSI finds, your site inspection may end painlessly, or may lead to further inquiry, assessment of fines, and/ or possible criminal charges.
KEY POINT: HSI AUDITS FOCUS ON YOUR PROCESS FOR VERIFYING EVERY EMPLOYEE’S AUTHORIZATION TO WORK IN THE UNITED STATES
The best thing you can do, as a business owner or manager, to prepare for a worksite enforcement audit is to have a sound I-9 procedure or E-Verify procedure in place and take steps to make sure it is followed. Next, have a plan of action in place in the event HSI officers show up with a NOI. There is a good chance it won’t be at a convenient time for you to drop everything and focus on an audit. Of course, engaging an attorney knowledgeable in the I-9 and E-Verify laws ahead of a Notice of Inspection is the smart thing to do. The attorney can help you craft your I-9 program and response plan proactively. If you wait to engage the attorney until after the Notice of Inspection, you run the risk of being fined and/ or charged with criminal violations.
KEY POINT: HAVE A PLAN, ENGAGE A BUSINESS IMMIGRATION ATTORNEY