Maybe you just received a Notice of Inspection (NOI) from ICE; or maybe you had a visit from an ICE official, notifying you of an impending audit. Either way being on the receiving end does not evoke pleasant feelings and likely causes a fair amount of agitation. Maybe you have some processes and procedures in place to minimize findings of violations (and resulting fines or other sanctions). Hopefully you do, but what if you do not? While being prepared is certainly better, (and we will get into how you can be prepared in an upcoming post) it’s too late now to worry about that. What can you do? Is all lost? Not necessarily. Read on to see, in a nutshell, some suggested responses that can reduce findings of violations and resulting sanctions.
Occasionally I am asked, “Can ICE just come in and demand to see our I-9’s? Can they demand to see other documents as well?”The answer is a qualified “Yes”. ICE can audit your I-9s, but must follow at least some procedural requirements. As for other documents, that too depends on circumstances and is subject to procedural requirements. Most employers will receive a Notice of Inspection (NOI) either in person or by mail. The Notice of Inspection is the form that notifies the employer that ICE intends to inspect the employer’s I-9 forms. The notice must provide at least three (3) business days’ advance notice prior to the intended inspection. As a practical matter, however, the employer can speak with the agent involved to arrange a different date if circumstances should warrant it. If ICE has a warrant or a subpoena, then it does not have to provide advance notice, and an employer would be obligated to allow ICE to conduct its search in accordance with the warrant. This is less common, and generally will only occur in the context of a search in response to information indicating that the employer may be knowingly hiring unauthorized workers or even engaging in human trafficking, a subject well beyond the scope of this post.) Again though, if an ICE official appears without a warrant or subpoena then it cannot demand immediate production of I-9’s or any other documents.
OK, so you have received the Notice of Inspection. Now what? First, don’t panic. Next, do not waive the three business day notice period. The Notice will say that you have the right to waive the three business days and produce I-9s immediately. You do not want to do that! Even the most well-meaning employers who make every effort to be compliant will likely have at least a few I-9s with either technical or substantive violations. At the very least, you will want to use those three days to double-check your compliance with regulations. If you do not have either in-house or outside counsel, now is a good time to consult with an attorney, who is familiar with I-9 compliance.
What should you do now? Carefully read the Notice of Inspection and accompanying subpoenas, if any. You want to be sure that you know that you are providing everything requested. You also want to make sure you not turning over more than necessary. In other words, you want to do what is required—no more and no less. Without a subpoena, ICE may only request to see I-9 Forms and a list of current and past employees and their Social Security numbers. If you copy documents that employees provide to establish employment eligibility and identity for completing the I-9, ICE may examine and obtain copies of those documents in addition to the I-9 without a subpoena. To request personnel files containing information beyond that needed to determine whether an employer has I9s for current and former employees, ICE needs a subpoena.
Now that you have received and reviewed the Notice of Inspection, you should designate a “point person” for dealing with ICE. If you do not have someone in-house that is knowledgeable of I-9 compliance regulations, you might think of designating your attorney. Again, if you do not have an attorney, now is a good time to find one! Whoever you choose to designate, that person will make the first contact with the ICE auditor and should find out about how that particular auditor prefers to conduct the audit.
In all likelihood, the I-9 audit will not be taking place at your place of business. You will therefore need to provide the documents to ICE who will review them at their field office. Such reviews minimally, take several months to complete. During that time you will not have those documents, and you may need them. What do you do? First, take an inventory, make copies of and carefully document everything you give to ICE. In doing so, you can check that documentation against the NOI and any subpoenas to ensure that you have in fact complied with what was requested. You can also ensure the return of all records once the audit has concluded.
All of the above steps are ones taken upon receipt of the NOI. Now starts the three-day window. Note that the window is three business days, not calendar days. What should you do during those three business days? Here are some suggestions:
- Check the NOI request against your retention policies, if any. Employers are legally required to retain I-9s for a minimum of three years from the date of hire or one year after the employee’s termination date, whichever is later. If ICE is requesting I-9s of employees outside those time limits, provide those that you are legally required to retain, along with an explanation as to the non-production of those you are no longer required to obtain.
- Audit all I-9s you intend to turn over to ICE. Checking your I-9s prior to turning them over allows you to make corrections, which may help you avoid a finding of violation, that can result in a fine.
- When possible make corrections. Section 1 is completed by employees (Click here for review of the I-9 form). As such, only the employee can make those corrections. That should not be a problem if the I-9 in question is that of a current employee. If the I-9 belongs to a former employee, it generally will not be possible to correct it. As for Section 2, make sure corrections are done by an authorized employer representative, and that an auditor can clearly see the corrections (perhaps using a different color ink) and are initialed by the person making the corrections. Such changes should also be based on actual documents and knowledge rather than assumptions or information provided by others. In other words, the person making the corrections.
Now comes the time when you turn over the documents and wait. What are the possible results? Tune in same time next week for that discussion! Can’t wait to see you back here!
Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA applies to them.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
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