I-9 Forms: Tips on Responding to a Form I-9 Notice of Inspection

AILA recently released a great summary about responding to a Notice of I-9 inspection, here is a brief summary.

A company’s Employment Eligibility Verification Forms, also known as Form I-9, is used to verify employee’s identity and employment authorization. Employers must complete Form I-9 to document verification of the identity and employment authorization of each new employee (both citizen and noncitizen) hired after November 6, 1986, to work in the United States.

Immigration and Customs Enforcement (ICE) is authorized to issue a Notice of Inspection (NOI) and any accompanying subpoenas from ICE, to audit a company’s I-9 forms. Although ICE can issue both, it is more common that you will get an NOI with a document list. Since government investigations and audits can become complicated and lead to serious consequences, many companies will panic. It is important for the company to seek a counsel as soon as possible to assist you throughout the process. This article provided you following tips in responding to a Form I-9 Notice of Inspection:
I. Treat ICE agent seriously

NOI is a government action and is a serious process to ensure a company’s compliance with the immigration laws. As such, it should be treated with due respect and not be treated as a “friendly” exchange of documents. ICE agents can be very friendly and chatty. This might often leading employers to inadvertently supply adverse information that becomes part of the investigation record.

II. You will have three days to proceed, unless extension is granted

An employer served with an NOI is given three business days to turn over the requested documents to ICE. Even if you believe that the I-9 forms are in order, take the time to review all I-9s and cross-check them against the employee roster. Once the Forms I-9 and supporting documents are turned over to the government, they cannot be taken back.

While it is important to never waive the three day notice to produce the Forms I-9, it is equally important to not assume that you will obtain an extension of the three days to turn over the requested documents. While it will not hurt to request an extension, whether or not it is granted depends on the specific ICE office and agent handling the case. If an extension is needed, submit a request together with information as to the reason the extension is needed and a reasonable proposed timeline for when the employer can comply with the NOI.

III. You should carefully read the NOI and any accompanying subpoena

1) To understand the scope of the request.

It is essential to understanding the scope of the request, as often the NOI goes beyond a simple request for the company’s I-9s. Note that there are different versions of the NOI issued by ICE. Some are extremely vague and others are very specific. In addition, an administrative subpoena can also be drafted in a number of ways.

2) To understand whether the request is for both current and terminated employees.

Requests for I-9s for terminated employees do not always correspond to the employer’s retention requirements. If the NOI requests a subset of I‐9s for former employees that are required to be retained, the employer should only provide that subset. If the NOI requests I‐9s beyond those that are required to be retained, consider providing (with an explanation) only those which the employer is required to retain.

3) To understand the timeframes covered by the NOI.

You only need to provide documentation fall within the timeframes covered by the NOI. Provide only the documentation necessary for inspection of the company’s I-9s. If you believe documents are not relevant to the I‐9 audit, raise that with the agent. Often ICE agents will ask for many items, but that does not mean you must provide everything.

IV. Reach out to the agent or auditor

The ICE agent will provide his or her contact information or business card at the time the NOI is served. Every ICE agent handles audits differently and it is important to know the process that the agent will follow. Inquire about timeline, expectations and process.

V. Consider making corrections to the I-9s before producing them to ICE

Unless it violates local ICE rules or practice, consider correcting or supplementing deficient I-9s before turning them over to the government. In some jurisdictions, ICE will accept corrections on existing I-9s or new I-9s that were completed after issuance of the NOI. If you take this approach, keep the following considerations in mind:
• Be sure that you know enough about the rules of the ICE field office to ensure that you are not aggravating rather than mitigating the problems;
• Be sure there is sufficient time for you to review the I‐9s to identify any errors, and for the employee or employer to make meaningful and accurate corrections;
• If you correct existing I‐9s, you should make any changes in a manner that makes it absolutely clear what the changes are, who made the corrections, and when. Only the employee should make changes to Section 1. Changes to Section 2 should be made only by an authorized representative of the employer. The changes to Section 2 should be based on actual documents and knowledge, and not on assumptions or information provided by colleagues.

• All changes should be made in a different color ink than that which was used on the original I‐9 and should be initialed and marked with the date that the correction is made.

VI. Document everything turned over to ICE

ICE agents will take the original I-9 forms off-site. Therefore, the employer should make a complete copy of all I-9 forms and documentation that are given to ICE and request an inventory receipt from the agent. This is essential as it is the only way to prove which documents the employer turned over, which may be an issue later in the process. In addition, it is often a good strategy to put responses to any questions in writing and to confirm verbal communications with an e-mail or letter.

VII. Seek legal consultation at early stage of the process

Typically, the best practice is for the attorney to be the intermediary, not to have the employer communicate directly with ICE. An attorney will help you determine the documents required, the format in which the information should be provided, the scope of the NOI, negotiation of time and date the ICE agent will be returning to pick up the forms, etc.

If you need any legal advice on how to handle I-9 forms to avoid confusion and to proper respond to ICE’s Notice of Inspection, please contact our office.