Employers should understand how to handle I-9 inspections by Immigration and Customs Enforcement (ICE) and proactively prepare for possible enforcement actions to avoid penalties and prosecution.
An I-9 inspection is ICE's mechanism for enforcing U.S. immigration law. All employers are required to verify the identity and employment eligibility of its employees. To accomplish this, employers must fill out and maintain a Form I-9 for all new hires and retain records for terminated employees on file for three years from the date of hire or one year from the date of termination, whichever is longer.
ICE initiates an I-9 inspection by serving an employer with a Notice of Inspection (NOI), compelling the business to provide Forms I-9 and associated records (including payroll records and a list of employees with hire and termination dates, among other documents) to confirm compliance with employment eligibility verification laws. By law, ICE must provide employers at least three (3) business days to produce the requested records. ICE then conducts an inspection of the Forms 1-9 for compliance by examining them individually in their own offices. Once the inspection is complete, ICE will notify the employer of the results in writing. The types of notices vary, but the following represent the most common ones:
Notice of Inspection Results - Also known as a "compliance letter," this notifies a business that it was found to be in compliance.
Notice of Suspect Documents - Advises the employer that, based on a review of the I-9s and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
Notice of Technical or Procedural Failures - Advises the employer of identified technical violations, providing the employer 10 business days to correct them and advising the employer that these violations will become substantive violations if left uncorrected by the tenth business day.
Warning Notice - Issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
Notice of Intent to Fine - Advises the employer of a penalty issued for violations involving substantive, uncorrected technical information and knowingly hiring and continuing to employ those deemed unauthorized to work.
* Work with your attorney to prepare the requested documents for ICE. This preparation may include separating I-9s from employee personnel files if they were stored together (we recommend Forms I-9 be kept separate from personnel files), reviewing I-9s for compliance and consulting with your attorney about legally permissible corrections and completing otherwise incomplete forms.
There are also several actions an employer should not take upon receiving an NOI:
Employers who are found to be noncompliant may face civil fines and the possibility of
* Do not consent to waive the three day period if ICE agents show up without warning; you are legally entitled to take the full three business days (or longer if your attorney can secure it) before responding. If, however, the ICE agents have a warrant, you are not entitled to the three-day notice period and you cannot refuse their entry. Hospitality and Labor & Employment Alert | June 2019
* Do not submit any documents to ICE without first speaking to your attorney.
* Do not try to correct errors or omissions on the I-9s without first speaking with your attorney.
* Do not submit more documents than what has been requested by ICE.
* Do not let ICE take original documents without first making copies.
* Do not let ICE agents speak to anyone without first speaking with your attorney.
Begin Preparations Today
You may be confident that you have properly filled out all of your I-9s and all of your employees are eligible to work in the United States. And you may never receive an NOI and have to handle an I-9 inspection. However, this era of increased I-9 inspections has swelled the possibility of potential employee audits. Preparation is the best move. Be proactive, consult with your immigration attorney and request that your counsel perform an internal inspection to review your I-9s and make necessary corrections.
This publication is intended for general information purposes only. It does not constitute legal advice. The reader should consult with knowledgeable legal counsel to determine how applicable laws apply to specific facts and situations. This publication is based on the most current information at the time it was written. Since it is possible that the laws or other circumstances may have changed since publication, please call us to discuss any action you may be considering as a result of reading this publication.