FY12 Busiest Year So Far for ICE Audits

Fiscal year 2012 (FY12) was the busiest year on record for the Immigration and Customs Enforcement (ICE) audits of employers’ employment eligibility verification (I-9 forms). Beyond just the number of investigations, fines and even arrests also grew dramatically during the past three fiscal years for violations related to the requirements for employers to verify employment eligibility of their employees.

Dramatic Increase in Audits Since 2009

Company owners, human resource and compliance managers should not expect a drop in I-9 audits, even with the completion of the 2012 general elections. The Associated Press reported that since the end of the George W. Bush presidency, ICE audits of company I-9 forms have risen dramatically.

In fiscal year (FY) 2007, ICE conducted only 250 audits. In FY12, ICE I-9 audits had risen to more than 3,000.

Fines and Arrests Increased Since 2009

The Murthy Law Firm reported on the increase of I-9 audits in our October 7, 2011 MurthyDotCom article, Suggestions for Employers to Comply with U.S. Immigration Laws.

During this same period from 2009 until 2012, fines for I-9 violations grew from $1 million to $13 million. The number of company owners, executives and managers arrested during ICE investigations increased to 238.

ICE Audits Seek to improve Employer Compliance

ICE and President Obama’s Administration have been open about the purpose of the focus on I-9 audits. This purpose is finding unauthorized workers and getting employers to comply with complex I-9 regulations.

All employers must comply with the Immigration Reform and Control Act (IRCA), which introduced the Form I-9 in 1986. Even employers who know that their workforce contains no unauthorized workers may face stiff fines for common violations.

There was a stunning announcement in February 2011 that ICE had issued I-9 audit notices to up to 1,000 companies, which was reported on MurthyDotCom in our article, WSJ: ICE Targets 1,000 Companies for I-9 Audits (25.Feb.2011). A detailed discussion of the escalation of ICE investigations and its effect was included in, ICE Continues to Target Employers for I-9 Audits (19.Aug.2011).

All Industries Targeted – TX & NJ Receive Highest Fines

ICE has made a determined effort to audit companies of all sizes, across the United States and in all industries. The Associated Press (AP) <http://www.oregonlive.com/today/index.ssf/2012/12/ice_performs_3000_audits_of_bu.html?utm_source=AILA+Mailing&utm_campaign=75d284f5ab-AILA8_12_26_12&utm_medium=email> reported that companies ranging from General Electric and a subsidiary of Heinz to a small Subway franchise have been fined for I-9 violations. ICE also publicized the conviction of a Dunkin’ Donuts manager who knowingly hired unauthorized workers and was sentenced to house arrest. The state of Texas had the highest number of ICE workplace fines in 2011, followed by New Jersey.

Re-Verification Requirement for Temporary Workers

One important area of I-9 compliance is re-verification. Employers are responsible for re-verifying the continued employment eligibility of employees who are working under temporary approvals, such as H1B status or employment authorization documents (EADs). A well-meaning employer without a good compliance system in place can easily miss re-verification deadlines. This is just one of a number of common violations that could be identified and addressed in an internal audit.

Employer Response Upon Notice of Intent to Fine

Employers have options to defend against an ICE notice of intent to fine (NIF). Even employers who maintain I-9s, have written I-9 policies that are updated, and conduct periodic internal audits may face problems in an ICE audit due to the complexity of the I-9 requirements.

An employer who receives an NIF may appeal within stated deadlines. Employers may appeal to the U.S. Department of Justice and request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). If ICE pursues the case after a hearing is requested, an Administrative Law Judge (ALJ) will hear the matter.

Possible Reduction of Fine Assessments by ICE

A number of recent OCAHO decisions have led to substantial reductions in the fines that were assessed by ICE. This means that, if appropriate, companies issued NIFs can avail themselves of the option to appeal to OCAHO, in an effort to reduce the impact of I-9 violations claimed against them.

Company Internal Audits Advisable Before ICE Knocks

The best advice to employers is to begin 2013 with an internal audit of company I-9 records – before the business receives a notice or subpoena from ICE. An audit of I-9s conducted by a qualified outside provider is often an investment in creating a compliance program that can prevent I-9 violations. It is possible that engaging in proactive internal audits can mitigate the penalties for past mistakes that may be considered “technical” if discovered in an ICE audit.


In the current climate of increasing investigations and even criminal prosecution of employers, it is imperative that each company understands and complies with the requirements of the I-9. Employers should have an outside auditor review their immigration files, including I-9s, to determine their level of compliance. A company contacted by ICE for an audit, having legal representation during the investigation or appeal stage can be beneficial. The Murthy Law Firm is available to perform company audits or advise employers on compliance matters.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.