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According to published reports, the U.S. Immigration Customs Enforcement Agency ("ICE") has sent out some 1,000 notices of immigration audits across the U.S. The large number of notices during September is apparently tied to the close of the end of the government's fiscal year on September 30. The government refuses to release the names of the companies being audited, but reportedly the audits particularly have involved restaurants, food processing, agriculture, and manufacturing. Some say the large number of audits are related, at least in part, to the push in Washington to pass immigration reform legislation.

In such audits, ICE sends a notice of an audit demanding various documents, including I-9 forms, and various payroll lists. After reviewing the documents, ICE issues a "Notice of Suspect Documents" listing suspect workers. Employers receiving such notices are required to notify the workers of their challenge by the government and that they must be terminated unless they show additional legitimate papers. The government is getting increasingly tough on the amount of time it gives the employers to terminate the suspect workers.

Audited employers later receive a second notice indicating the amount of any applicable fines, which can range from $110 to $1,110 per I-9 form, depending on the seriousness of the paperwork errors. Some errors are deemed substantive, while some are deemed procedural. In the latter situation, the employers are given 10 days to correct the errors, the failure of which results in fines.

Many employers erroneously think that simply being on the government's E-Verify system protects them from fines, but that is not the case. In a few cases, there have been substantial criminal fines in addition to the normal penalties, and, in at least two cases, the amount of the penalties have exceeded $1 million. These more expensive situations have occurred where there is potential criminal prosecution for knowingly hiring unauthorized workers.

Wimberly, Lawson, Steckel, Schneider & Stine

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