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Immigration News

Sep 28, 2009

DHS Issues Many I-9 Audit Notices and Requests Substantial Documentation

Category: General

DHS Issues Many I-9 Audit Notices and Requests Substantial Documentation

The Department of Homeland Security (DHS) has issued 1,000 new I-9 audit notices to employers across the country.  Companies being targeted in this most recent wave of I-9 audits are largely those involved in so-called “critical infrastructure” areas – areas deemed to be related to national security and public safety. These new audit notices follow on the heels of 654 I-9 audit notices issued to employers this past summer.  The conclusion of the last round of Immigration and Customs Enforcement’s (ICE) I-9 audits reportedly has resulted in more than 60 employers receiving fines totaling more than $2 million.  In addition,  an additional 267 companies are still being considered for fines.

ICE Assistant Secretary John Morton has continued to stress the agency’s commitment to aggressive investigations and outreach programs as a means to “encouraging” employer compliance.  One additional facet that DHS continues to encourage is participation in E-Verify, the electronic employer verification system.

The newly issued audit notices are particularly concerning for employers as they contain numerous additional requests not normally sought in the past.  In addition to the “standard” inquiries that employers have seen for many years, such as requests that the employer provide original I-9 forms, payroll records, and federal and state wage tax reporting forms, the new subpoenas also include:

  • Independent contractor roster, including dates of hire and termination and copies for Form 1099s;
  • Listing of all paid on-call individuals employed on a sporadic, irregular or intermittent basis and not deemed, by the employer, to be an employee;
  • Copies of Social Security Administration  correction requests (the so-called “No Match Letters”);
  • Copies of I-129 or I-140 petitions filed with United States Citizenship and Immigration Services  or labor certifications filed with the Department of Labor ;
  • Copies of corporate documentation, including annual reports and federal tax reporting numbers; and,
  • Copies of any information relating to the company’s procedures for I-9 compliance.

ICE requests may also include queries to the employer on other related matters, such as if the company participates in E-Verify, if it has previously been the subject of an I-9 inspection, and if the company employees any individuals through temporary staffing agencies.

The additional information being requested likely will result in an assessment by ICE regarding whether the employer has properly identified its independent contractors. It may also allow ICE to determine whether the immigration petitions were internally consistent (employees sponsored for the same positions, with the same requirements).  Similarly, ICE can use this information to assess whether individuals who indicated on their Forms I-9 that they were U.S. citizens or legal permanent residents were ever sponsored by the employer for any nonimmigrant or immigrant visa.

All of the information requested in the subpoena normally must be provided to ICE within three business days.  The copious amount of data being requested, combined with the short time period, makes it imperative for companies to review their records with counsel to ensure that they would be able to comply, if requested.  We recommend that all companies put into place procedures to review the above-noted items with their outside immigration counsel to ensure that relevant records are properly compliant as we believe that the audit trend will only continue to expand in the coming year.


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