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Mar 13, 2020

The 2020 Form I-9 Audit Season Has Begun!

David Spaulding

At 10:31 PM last night, I received the first of the year’s inquiries about Form I-9 Audits.  I was expecting that Immigration and Customs Enforcement (ICE) would serve their Notices of Inspection (“Audits”) this week so it wasn’t a surprise.

Each time ICE drops their Audits, informing companies that their Forms I-9, Employment Eligibility Verification (“Form I-9”) are being audited, the inquiries that come to my Compliance and Regulatory Enforcement Practice either lean towards “I got this audit notice and am not sure if I need an attorney” or the other extreme of “oh, Dear Lord!  What new hell is this?!”  To be sure, those reactions are appropriate for some clients but most clients are somewhere in the middle;  they have imperfect Form I-9s and could use a little “cleanup” and packaging for submission.  That is not so costly and often leaves companies stronger and wiser for the experience.

ICE is aiming at 15,000 Audits this year.  Without some significant luck on implementing new technology or onboarding more officers, 10,000 is probably the top end number but that is little comfort for the company which receives an Audit.  For audited companies, the 30 days that the Audit notice gives them to present perfect Form I-9s is daunting.  It represents at least three significant threats: 1) fines and penalties, 2) management and administrative disruption, and 3) business disruption if any of the employees are found to be “unauthorized workers.”

This is not a great time for a company to go it alone and experienced counsel can help in several important ways: 1) perhaps we can get additional time from the government in order to formulate a more complete and effective response, 2) demonstrating good faith efforts to comply with the law is extremely important in responding to an Audit notice and we can do after-the-fact what should probably have been done before, 3) packaging matters and experienced attorneys are in a better position to know what a good response should look like, and 4) attorney-client privilege permits the kind of frank, honest communication and advice that places companies in the best place to respond.

The consequences of a misstep in responding to a Notice of Inspection can be dire and it is not a road that inexperienced counsel or unrepresented companies should tread without guidance.  The costs of our legal assistance are a fraction of what the fines and penalties can be and are entirely dwarfed by the business disruption of a full-on worksite enforcement action.

My compliance and enforcement practice is perfectly positioned to help.  We have the experience and capacity to serve client interests in audits well.  If your company wants help with such matters, please contact our compliance and regulatory enforcement team at Green and Spiegel, LLC.  You can also call or text me directly at 484-645-4194 or email me at dspaulding@gands-us.com.

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David Spaulding

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