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Discussion Points for Punto Legal –October 02, 2019

contextual

1. I-9 Audits.

At least three restaurants in Glenwood Springs have been subjected to ICE visits last week. They are ColoraDough, Thor’s, and Tequila’s. These ICE visits are I-9 audits. The I-9 form is the form that new employees have to file with their employer to show they are authorized to work in the United States. The I-9 audit is the primary worksite enforcement mechanism used by ICE. Audits involve a review of I-9 forms and payroll records. Audits may result in civil fines and may lay the groundwork for criminal prosecution of employers who knowingly hire undocumented workers.

Here is how they work: An employer is issued prior notice of the inspection, usually three days before the inspection. Inspectors will review the I-9 forms and compare these with employment records, including payroll records, to determine if there are any paperwork or hiring violations. Agents will notify the employer of any discrepancies between the information listed on the I-9 form and information in their records with regard to a particular employee’s work status. The employer is expected to follow up with this information by reverifying the employee’s work authorization. Agents will re-visit the employer to determine whether the employer has taken appropriate steps. With regard to paperwork violations, employers are given a 10-day period to correct any minor violations that were deemed to be "technical."

If hiring or paperwork violations are uncovered in the course of these audits ICE will issue a notice of intent to fine (NIF). The NIF will assess a penalty for the violations. If the employer contests the fine notice, ICE will file a complaint with an administrative law judge initiating administrative hearings before the Office of the Chief Administrative Hearing Officer (OCAHO) in Washington, D.C.

Employers can be fined up to $4,600 for a first offense and $11,000 for a second offense.

Employers with "paperwork violations" (i.e., failure to maintain I-9 records for some or all employees or failure to properly complete I-9 forms) may be assessed a civil penalty of up to $2,300 for each paperwork violation.

The employer has some control over the location of the inspection. The law gives the employer the option of bringing the records to the ICE office, which is a wise idea.

Employers freak out when they get an I-9 audit. And when undocumented workers employees hear about the ICE audit, they quit work temporarily or permanently because they do not want to be arrested by ICE. Sometimes the workers go to work for a temp agency and get re-hired by the employer through the temp agency.

2. Last week we had a question

about who could file the Form I-864 Affidavit of Support in a case where an immigration petitioner had died. A spouse, parent, mother-in-law, father-in-law, brother or sister, a child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien can file the affidavit of support.