Lead Driven Audits - Articulable Facts which Support Investigation
In order to support the investigation, Department of Homeland Security (DHS) must articulate facts which support the investigation. DHS is allowed to rely on an ICE Agent's personal knowledge of high concentration of illegal foreign nationals in the area, whether it is the type of industry or employment which attracts violations, an employee's excessive nervousness or studied nonchalance around ICE agents, and an employees' inability to speak English.
Typically, lead driven audits are the focus of enforcement authorities. However, ICE randomly selects employers within industries known to use undocumented employees
Notice of Inspection Procedures
Three government agencies can inspect I-9s, (1) Immigration Customs Enforcement (ICE), (2) Department of Labor (DOL), and (3) the Office of Special Counsel. Typically, a 3-Day Notice is delivered in-person or by certified mail to the employer. However, ICE may issue subpoena to immediately review an employer's I-9s without a 3-Day Notice.
Defenses to I-9 Sanctions
There are defenses to I-9 sanctions. One defense is good faith and substantial compliance where documents are on their face genuine. On an I-9 the employer is not attesting to the legitimacy of the person, but rather that it has reviewed the original documents and reasonably appears genuine. In addition there is a defense in the case of the use of independent contractors and when hires are casual such as very sporadic, irregular or intermittent domestic employment. The statute of limitations for I-9 violations is 5 years. Also, some employees who were hired before November 7, 1986 were grandfathered.
Not a Defense
Claiming that I-9 errors are due to high employee turnover is not a defense to the violations. Failure to complete Part 1 of the Employee Attestation even if a copy of the identifications is attached to the I-9 is not substantial compliance. Using independent contractors is not a shield where an employer knowingly uses a contract or subcontract to obtain labor or services of an unauthorized worker. Finally, incorporation of the business does not shield officers of the business from penalties.
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