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Last week, news sources reported that at least 50 workers at several Minnesota-area Chipotle restaurants were fired in response to an I-9 audit initiated by Immigrations and Customs Enforcement (ICE). While details of the firings have been scarce, it’s not hard to imagine how the story unfolded. Over the past 2 years, we’ve seen many similar reports (involving other high-profile retail outlets) where an I-9 audit quickly leads to terminations of employees who are unable to document their work authorization. Given the political climate and the ramping-up of ICE audit activity, we can expect this to be a familiar pattern into the next year.

So how does an I-9 audit turn into a mass exodus (voluntary or otherwise)? To answer that question, we’ll take a quick look at the I-9 inspection process in general and the often-difficult decisions facing employers today.

The ICE Form I-9 audit usually begins with the Notice of Inspection (which arrives in person along with an administrative subpoena) compelling the employer to produce the I-9 forms and other related documents within 3 business days. Typically, employers must also produce a copy of the payroll, list of current employees, Articles of Incorporation, business licenses, and social security no-match letters (if any). In some instances, ICE may request an on-site meeting with the employer to gather information about their hiring practices, I-9 procedures, and even, E-Verify use.

After a review of the I-9s has been completed, ICE may issue a Notice of Technical Violations (for technical or paperwork errors) and provide a 10-day window for the employer to make corrections. At the same time, ICE may also issue a Notice of Suspect Documents if the I-9 audit uncovers evidence of fraudulent immigration documents or a “Notice of Discrepancies” for employees who appear to lack proper work authorization. Despite these dire notices, ICE will warn employers that they should not fire the employees or take any adverse action without contacting the employee first to see if documentation (or an explanation) can be provided.

For example, a Notice of Suspect Documents may alert an employer that certain employees presented green cards which actually pertain to other individuals. The employer will then need to ask the employees to clarify their status and request new (or different) documentation to verify employment eligibility. If the employee is unable to provide this documentation, the employer is effectively put on notice that they may be employing an unauthorized individual – a dangerous place to be for sure.

At this stage, an employer may have no choice but to fire the individual or risk being charged with a continuing to employ violation (which can carry civil penalties ranging from $375 to $3,200 per employee for a first violation; $3,200 to $6,500 per employee for the second violation; and $4,300 to $16,000 per employee for the third offense). In addition to civil fines, ICE may also pursue criminal charges if there is evidence of a pattern or practice of hiring unauthorized individuals, document fraud, or harboring of the individuals (e.g., paying for transportation, rent, etc.)

It goes without saying, however, that a decision to terminate employment in this scenario should be made in consultation with experienced immigration counsel. While there are most certainly consequences in not taking action, there are also potential discriminatory obstacles to overcome in the event the information is incorrect (the government has been known to make mistakes afterall) which could lead to civil rights lawsuits or DOJ investigations (not to mention, public concern or outrage).

Rock meet hard place…or welcome to the wonderful world of I-9 compliance.

For more information on the Form I-9 Inspection process, including the range of fines, please take a look at the ICE Form I-9 Inspection Overview at the ICE web site here.

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