Nov. 23, 2011
The number of Notice of Inspections (NOI) of I-9s issued by US Immigration and Customs Enforcement (ICE) this year has skyrocketed. Along with the re-introduction of “No-Match Letters” by the Social Security Administration, it has become clear that the federal government is taking an increasingly aggressive stance in using all available information to curb the hiring of unauthorized workers and to penalize employers who do. So, what should you do if you receive a Notice of Inspection?
Notices of Inspection
In February 2011, the Department of Homeland Security (DHS) issued more than 1,000 new Notices of Inspection across the country and expects to issue new NOIs every quarter. Given the probability of more employers receiving an NOI, it is imperative that every employer be aware of the consequences of these NOIs and understands how to adequately prepare for them.
The NOI process is as follows:
• The employer will be served with an NOI requesting the I-9 forms. Often, the NOI will request supporting documentation and may have a subpoena attached requesting additional information. Although the focus of the NOIs is to locate employers who hire undocumented workers, DHS is also targeting those employers who improperly complete their I-9 forms by fining them for “paperwork violations.”
• The employer will have three business days to present the documentation to ICE.
• After the I-9s have been reviewed internally by the employer, the records will be sent to ICE for their review, also known as an inspection.
• ICE will notify the employer, in writing, of the results of the inspection once completed. Receipt of a Notice of Inspection Results means the business was found to be in compliance. Other notices, such as a Notice of Suspect Documents, Notice of Discrepancies, Notice of Technical or Procedural Failures, Warning Notice or Notice of Intent to Fine require a response from the employer.
• If a Notice of Intent to Fine is served, charging documents will be provided specifying the violations committed by the employer. The employer, through counsel, can negotiate a settlement with ICE or request a hearing before the Office of Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt.
Responding to NOIs
In the event you receive an NOI, do not consent to an immediate review of I-9 records; you still have three business days to reply. Also, do not answer any immediate questions about your hiring practices, immigration policies or business operations. Remain calm, an NOI is not a raid.
As NOI Inspections are serious and dangerous matters, we do recommend retaining counsel immediately. Inform the ICE agent that an attorney will be in contact to discuss production of records. Under any circumstances, do not consent to any ICE interviews with management or hourly employees without the presence of immigration counsel.
Given DHS’ focus on NOIs, employers should conduct regular in-house I-9 audits well before receiving an NOI. Such audits allow employers to assess its current verification system and determine if changes in policies and procedures are required.
As the current environment of aggressive government enforcement against employers is not likely to subside anytime soon, employers should take care to comply with all regulations and carefully complete and maintain all necessary paperwork. Conduct regular in-house I-9 audits and carefully track all I-9s and related information. Do not panic when regulators come calling, but take their inquiries seriously. Careful response to these investigations can help employers avoid large fines and disruption of operations.