Initial Steps To Respond to a Notice of Inspection by ICE

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:

  1. Read the NOI and accompanying subpoena carefully to determine what is being requested.
  2. 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.
  3. 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.
  4. Carefully prepare the submission to ICE in an organized fashion, including a letter stating what is being produced.
  5. 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.

The Most Common Errors Relating to I-9 Forms

After assisting employers in auditing thousands of I-9 forms and in improving their immigration-related policies and practices, I have observed some common errors that employers historically have made.  Some of the process errors or issues include:

  • Failing to properly train those employer representatives who are responsible for ensuring the completion of a timely and properly completed I-9 form.
  • Failing to have a written policy that outlines the responsibilities of appropriate management and human resources relating to immigration compliance.
  • Failing to take precautions to ensure that the employers contractors and subcontractors are complying with their obligations relating to the I-9 form.

Other  errors are related to the completion of the I-9 form itself, which include:

  • Missing I-9s for current employees or for terminated employees during the applicable retention period.  The retention period is three years from date of hire or one year from date of termination, whichever is longer.
  • Using expired I-9 forms.  Employers must ensure they are using the most current version of the I-9 form.
  • Using the Spanish version of the I-9 form, except where it is allowed (Puerto Rico).
  • Completing the I-9 form late.  The employee must complete section 1 of the I-9 form on or before the first date of hire.  The employer must complete section 2 of the I-9 form within three days of the date of hire.
  • Failing to ensure that the employee signs and dates section 1.
  • Accepting documents that are not on the list of acceptable documents.  For example, accepting a hospital-issued birth certificate as a list C document, when only government-issued birth certificates are listed as acceptable birth certificates in  list C.
  • Accepting expired documents, such as an expired passport or drivers license.
  • Failing to write in the hire date.
  • Failing to ensure that the employer representive who examined the original documents signs, dates and completes every portion of section 2.

In sum, attention to detail and a commitment to immigration compliance is the key.  Employers who have historically ignored these issues benefit greatly from obtaining assistance in cleaning up the past as best as possible in accordance with acceptable correction procedures and in creating  an environment of immigration compliance to move forward.  Ive seen it done many times, and employers who do it rest better at night knowing that they will be ready if audited by ICE.

Per ICE Director, Audits of I-9 Forms Will Continue to Increase


ICE audits of employers’ I-9 forms will continue to increase in the coming years, so now is the time for employers to get ready.  John Morton, the Director of ICE, recently spoke at the Worksite Immigration Compliance Symposium at Stanford School of Law.

Director Morton was accompanied by a host of secret service officers.  The room was full so we found ourselves on the dreaded front row trying to eat our lunch and not make any sudden moves that may be interpreted by the secret service as some hostile act.

Director Morton’s message to the crowd was clear-ICE audits of employers will continue to increase in the coming years so employers better get their houses in order.  The “silent raids” involving the inspection of I-9 forms and issuance of fines for errors on such forms have no end in sight.  Since an employer has only three business days to turn over the I-9 forms after being served with an ICE notice of inspection, an employer’s decision to just wait and see is extremely risky.

We know from our internal audits of employers that the error rates often range between 50%-75%.  If you multiply the I-9 forms with errors by a possible fine of $1100, that is big money at issue.  Then there is the potential for negative press.  Even if the employer had no unauthorized workers, the headline might state something like, “Company fined for Immigration Violations.”  Such a headline implies something much more than just a paperwork problem.  Why take this risk when there are ways to clean up and get ready for the time when ICE comes knocking?

 The good news is that Director Morton and ICE are not keeping their intentions secret.  They are providing clear warning that more audits are coming.

What can employers do?

  1. Obtain experienced legal counsel to audit and provide guidance on correcting their I-9 forms during the relevant retention period.   Self-audits often lead to more problems.
  2. Develop compliant standard operating procedures to avoid future errors and ensure compliance in all immigration areas.
  3. Review the available guidance provided by the government, including the M-274 Manual for Employers, and the M-396 Guide to Selected U.S. Travel and Identity Documents.  Warning:  the guidance provided by the government does not answer all the questions and sometimes is confusing or even conflicting.