Why Would ICE Choose My Business for an I-9 Audit?
There is a misconception out there that I-9 audits are random. The truth is, most are driven by information provided to the government either intentionally, or unintentionally. I’ll explain in this post a few of the more common lead generators that point Immigration and Customs Enforcement in your direction.
1. U.S. Citizenship and Immigration Service’s (USCIS’s) processing of applications and petitions for benefits.
Often, undocumented people that have been living and working in the United States become eligible at some point for a valid immigration status by marriage to a U.S. citizen, having a citizen child that reaches the age of 21, or being the victim of a violent crime, to name a few ways. To be approved for the immigration benefit and receive their visa, the immigrant must submit an application for the visa to USCIS. These applications typically ask for past employment and tax history. The applicant must provide truthful information in the application or risk its rejection, and if USCIS sees that the undocumented person has been working for your company, it raises a question as to how well you verify the employment authorization of your employees. An audit of your process may follow.
2. Information from disgruntled employees or competitors.
When workplace safety became a hot topic through the enactment of the Occupational Safety and Health Act, disgruntled employees and competitors figured out that they could shine a bright light on a company by reporting violations to authorities. Immigration is a hot topic today, and it is easy to conceive several reasons why a disgruntled employee might report either perceived or actual immigration violations. The employee was passed over for promotion by someone whose work authorization s/he questions. The employee was terminated. The employee felt outnumbered by people speaking another language. Etc. Likewise, it is easy to see why a competing business that strives to hire authorized workers but can’t seem to compete with another business whose workforce s/he believes is unauthorized might be tempted to report.
3. Audits of employers who provide information about temporary agencies they use for augmented staffing.
Past investigations uncovered that employers have sent employees it knows to be unauthorized for work to staffing agencies only to hire the employee through the agency. When an employer receives a Notice of Inspection, one of the items requested is a listing of any staffing agency it uses. This leads to I-9 audits of the staffing agency. ICE investigators will piece the puzzle together if they find all of an employer’s undocumented workers were employed through an agency, and they may determine the employer had knowledge of their undocumented status.
4. Identity theft complaints submitted to the Federal Trade Commission’s Bureau of Consumer Protection.
Identity theft complaints can lead investigators to employees working at your company who provided you with stolen identification information or documents when you hired them.
5. SSA “no-match” letters.
A no-match letter is a letter from the IRS notifying an employer that information submitted in one or more of its W-2s does not match information with the Social Security Administration i.e. the name doesn’t match the number. One of these letters might indicate an anomaly. Several suggest a problem.
These are a few of the triggers that cause I-9 audits. The bottom line is, you need to have a sound I-9 program in place. It is your only defense. If you get audited, ICE probably had a reason to initiate the audit and you should get help from a qualified attorney.