ICE (AUDITS) IN THE SPRING AND SUMMER: When Immigration and Customs Enforcement (ICE) issues a Notice of Inspection (NOI)

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 admini