The current administration has made a high priority of enforcing immigration law. As a result, worksite enforcement actions are rising and employers need to be prepared for an increased chance of being involved in an I-9 inspection. These inspections may include much more than I-9 forms. Immigration and Customs Enforcement (ICE) may also inspect payroll records, past employee records, tax statements, earnings statements, Social Security Administration correspondence, and much more. However, when ICE decides to perform an audit of a company’s Employment Eligibility Verification forms, they will issue the I-9 Notice of Inspection (NOI). Providing a careful response to the I-9 Notice of Inspection is critical as it lays the foundation for communicating, negotiating, and often settling with ICE.
What Is an I-9 Inspection?
All U.S. employers are required to verify individuals who are authorized to work in the United States, including citizens and noncitizens. Given that the Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States, employers need to ensure its proper completion.
Employers who are found to violate the verification and employment eligibility requirements may be subject to criminal and civil sanctions. Therefore, it is important for them to have a comprehensive I-9 compliance program that addresses I-9 completion, policies, re-verification, audits, and training. They should also regularly review the Handbook for Employers, Guidance for Completing Form I-9.
ICE initiates an I-9 inspection by serving an employer with an I-9 Notice of Inspection, compelling the business to provide Forms I-9 and associated records to confirm compliance with employment eligibility verification laws. ICE usually gives companies three days to collect and organize the I-9 forms and submit them. However, ICE also has the power to seize the forms immediately through subpoenas and warrants.Use this comprehensive guide to find out how to avoid substantive and technical violations that result in I-9 inspections and ensure constant I-9 compliance.
Types of I-9 Notice of Inspection
Upon inspecting I-9 forms and other documents included in the I-9 Notice of Inspection, ICE notifies the employer of the results in writing. Failures to comply can be classified into substantive violations and technical or procedural violations.
The types of I-9 notice of inspection vary, but the following represent the most common ones:
Notice of Inspection Results
If, after the inspection, the ICE determines that there is no basis for further investigations, they will issue a Notice of Inspection Results. It is also called a compliance letter as a declaration that the business or the employer is fully compliant.
Notice of Suspect Documents
Notice of Suspect Documents is issued when ICE determines that an employee is unauthorized to work, and advises the employer of the possible criminal and civil penalties for continuing to employ that person. 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 Discrepancies
In case that ICE determines that some employees’ identities or employment eligibility could not be verified, ICE will issue a Notice of Discrepancies. The next step would be for the employer to provide employees with a copy of the notice, and give them an opportunity to present ICE with additional documentation to establish their employment eligibility.
Notice of Technical or Procedural Failures
This Notice advises employers of identified technical violations, providing them 10 business days to make corrections After 10 business days, uncorrected technical and procedural flaws become substantive violations, subject to higher fines.
ICE may decide that although discrepancies were found in the records kept by the employer, they were purely technical or procedural. When this happens, ICE may issue a warning notice only and not impose any sanctions against the employer. This also gives the employees and the employer the opportunity to correct mistakes in their records during a period no shorter than ten days. ICE may require a follow-up inspection to ensure that all technical or procedural discrepancies have been corrected.
Notice of Intent to Fine
In case of violations involving substantive, uncorrected technical information and knowingly hiring and continuing to employ those deemed unauthorized to work, ICE will issue a Notice of Intent to Fine. After receiving this notice, employers have 30 days to request a hearing with an administrative law judge.
Preparing for I-9 Inspections
Despite the increased risk of being involved in an I-9 inspection, employers can reduce or even eliminate fines if they take steps to correct their issues on time.
Responding to I-9 Notice of Inspection and communicating with ICE is a complex process and should not be taken lightly. Even if I-9 forms and supporting documentation are in order, employers should never waive the three day period allowed to produce the forms. If an employer is uncertain concerning any information contained within the I-9 Notice of Inspection, it is appropriate to immediately seek clarification and confirmation from ICE, making sure that communication is professional, honest, and tactful.
The best way to prepare for an ICE I-9 inspection is to gather paper and electronic I-9 forms and perform an internal I-9 form audit. This allows employers to identify and add missing forms as well as to correct issues with existing ones. Also, ICE considers different factors when determining penalties, including whether there was a good faith effort to comply. Therefore, performing an internal audit to find mistakes and correct them can help show progress toward compliance.
Given that an estimated 60-80% of paper I-9s are missing, incomplete, or have errors, employers should consider automating the process of completion, retention, and destruction of I-9 forms. In addition to improving compliance, reducing risks, and increasing efficiency, automated I-9 verification simplifies the process of reviewing I-9 forms and provides an extensive audit trail that may reduce any fines and penalties from ICE. Such an approach also enables employers to respond to I-9 Notice of Inspection within the mandatory time frame, find forms that may have issues, and take corrective actions before ICE inspects them.Automate the I-9 verification process to simplify verification of identity and employment authorization and ensure ongoing compliance throughout the employee lifecycle.