When Immigration and Customs Enforcement (ICE) issues a Notice of Inspection (NOI) to audit a company's Employment Eligibility Verification forms (Form I-9 or I-9 form), the company will often panic and want to jump right into things. However, a careful response to an NOI can set the tone for the rest of the ICE audit process. This practice pointer is general in nature. It is important to note that an I-9 audit will be affected by a number of variables, such as the ICE office, the ICE officer who is assigned to the case, and local rules.
Moreover, government investigations and audits can become complicated and lead to serious consequences. Companies who are not represented prior to an NOI should seek counsel as soon as possible to assist them throughout the process. Proactively Prepare Employers for Receiving an NOI. Remind your existing employer clients to have a process in place for dealing with the receipt of an NOI and any accompanying subpoenas from ICE.
Though ICE agents can issue both, the issuance of an NOI with a document list, rather than a subpoena, is more common. Receipt of an NOI should be treated as any other service of process and should be escalated through the appropriate internal channels. As there is limited time to proceed; the law allows for three days; it is important that the NOI receive immediate attention and not be buried in an inbox at the front desk. In addition, if a company only allows certain designated employees to accept service of process, this should be communicated to the receptionist and/or other administrative personnel so they are able to immediately respond in an appropriate manner when an NOI is served.
If the ICE officer asks questions while serving the NOI, any information provided by the employer could come up later in the process. Therefore, only a designated person should provide information to ICE. Anyone else should advise ICE that they are not authorized to speak on behalf of the company. Finally, it is important to note that an employer need not turn over any documents to ICE at the time the NOI is served, even if asked by ICE. All documents can be provided with the Forms I-9s, as discussed below.
Never Waive the Three Day Notice to Produce the I-9 Forms. 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.
The ICE Agent Is Not Your Friend, No Matter How Friendly. Issuance of an NOI is a serious process meant 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 have been known to be very friendly and chatty, often leading employers to inadvertently supply adverse information that becomes part of the investigation record.
Extensions - Truth or Fiction? 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.
Carefully Read the NOI and Any Accompanying Subpoena. This 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. Pay particularly close attention to whether the NOI requests the I-9 forms for both current and terminated employees, and the time frames that are covered by the NOI.
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. Also note whether the NOI requests only the I-9s or also seeks the supporting documentation (if the employer retains copies).
An employer's obligation to comply with a subpoena is not the same as with an NOI. It is important to know exactly which documents ICE is requesting.
If there is any ambiguity, or if you or the employer has any questions about the request, seek clarification from the ICE agent immediately. If you do not, and you fail to provide the documents that ICE has requested, ICE could argue that you were put on notice regarding the requested documents at the time of the original NOI, and refuse to issue a second NOI or other request for the documents. Finally, read the NOI with an eye toward providing 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.
Reach Out to the Agent or Auditor. The 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. Have a conversation early on with your client and make a decision as to the preferred channels of communication. Does the client want to communicate directly with ICE or does the company prefer to let you do the talking? While typically the best practice is for the attorney to be the intermediary, not all clients operate this way. If a lawyer is going to serve in this role, he/she will want to reach out to the agent and let him or her know that a lawyer represents the employer. The lawyer will want to provide the Form I-9s, and ask that all further contact from ICE be directed to the lawyer, rather than to the employer. The lawyer can also intervene by requesting that any further service of process (for example, for a notice of technical or procedural failures or suspect documents) be served on the attorney.
Finally, confirm any unclear information to allow a response to the NOI.
Consider requesting confirmation of:
- The Documents Required. Is ICE only requesting the I-9 forms or also the supporting documents?
The Format in Which Information Should Be Provided. Some agents want the payroll to be in Excel or Word or other electronic format rather than hard copy.
- The Exact Time and Date the Officer Will be Returning to Pick Up the I-9 Forms. This information is often not listed and can be negotiated.
- Which Employees are Subject to the NOI? Is ICE requesting forms I-9s for current employees or for terminated employees as well?
- Which Companies or Locations are Subject to the NOI? This can be an issue if ICE serves the NOI on a branch office or a business unit of a company. Whether or not to raise this is a strategic decision for the attorney and the company. Typically, if ICE serves only a single location of a company and the NOI does not indicate otherwise, ICE is only auditing that location.
Consider Making Corrections to the I-9s before producing them to ICE. Unless it violates local ICE rules or practice, consider whether the employer should correct or supplement 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.
- If the lawyer and the client decide to make corrections or complete new I-9s, be sure there is sufficient time to review the I-9s to identify any errors, and for the employee or employer to make meaningful and accurate corrections. Assess the extent of guidance that the employee will need, and determine whether there is sufficient time to provide the guidance and for the employer to execute the guidance in a way that will improve the I-9s rather than make them worse.
- If the client corrects existing I-9s, the client 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 - whether made by the employee in Section 1 or the employer in Section 2 - 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.
Document Everything That Is Turned Over to ICE. An ICE audit does not take place at the employer site upon issuance of the NOI, but rather consists of a review of the original I-9 documents at the ICE field office or headquarters that may take several months or more. This is not explained in the NOI, and employers are often surprised when the agent returns at the appointed time and takes the original I-9 forms. 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. For example, the agent may request information regarding the employer, such as the FEIN, whether the employer is enrolled in E-Verify, or whether the employer has ever received any No-match letters. Documenting the responses to questions such as this can be very important later in the process.
If there are other issues that require explanation (e.g., a change in the Form I-9 policy over time, a change in company name or address), it is, in most cases, best to provide a letter of explanation with the I-9 forms. The goal is to avoid confusion and the need for additional follow-up. Subsequent conversations with ICE, if conducted in-person or by telephone, should be followed up with a written summary.
For more information about the Employment Verification Process, the M-274, Employer's Handbook or the I-9 Form Audit or process, please feel free to contact the immigration lawyers and attorneys at Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. by e-mail at firstname.lastname@example.org or by calling us at 201-670-0006 (x100). We would be pleased to share our I-9 Audit experience with you.