ICE continues to serve employers with Notices of Inspection (NOI) and subpoenas that request the production of I-9 forms and other documents. The latest wave of 2000 NOI’s went out within the last couple of weeks and more are scheduled to occur later this year. Given the possible fines for substantive or uncorrected technical violations on I-9 forms, and the fact that many employers have audited their I-9 forms (through knowledgeable internal or external auditors), knowing how to respond to a NOI can be critical to mitigating the exposure a company may face.
We recommend that all companies have an established protocol to handle government subpoenas and inspections, which may include asking for identification from the government official, determining the purpose of the visit, and contacting individuals within the company (e.g., upper management, in-house counsel) to ensure that the companys rights are being protected.
Although an ICE forensic auditor will review the I-9 forms, a NOI is often served by an ICE agent or special agent, who may ask questions at the time the NOI is served. Do not guess if you don’t know the answer, but simply state that you don’t know, and then direct the agent to someone in management or HR who can provide an answer.
After the ICE agent has left, it is critical that you immediately put together your team that will assist in responding to the NOI (HR, management, legal counsel). Remember that you only have three business days to produce the I-9s. You may request an extension of this deadline, but in our experience such requests are often denied.
While every NOI and company are different, here are some of the tasks the team should do:
- Read the NOI and accompanying subpoena carefully to determine what is being requested.
- Determine which member of the team will handle which tasks (e.g., pull payroll list, obtain I-9 forms). Organization of payroll rosters and knowledge of retention systems and files are often a big role in this process.
- Obtain expertise from experienced legal counsel on how to handle missing I-9s, I-9s that have errors, and other issues that may result in fines or problems. Proper and careful remediation at this stage is critical, although remediation prior to ICE serving the NOI is much more beneficial.
- Carefully prepare the submission to ICE in an organized fashion, including a letter stating what is being produced.
- Keep a copy of everything that is being submitted.
Once you have responded to the NOI, you likely will have to wait to hear from ICE as to next steps. These next steps, which may include a notice of suspect documents or a notice of technical deficincies, must be handled correctly to best mitigate possible fines.
What questions do you have about an ICE NOI? Put a comment below.