ICE Heats up Immigration Climate With 3,000 New I-9 Audits - Articles

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Posted by: Bruce Buchanan on Aug 6, 2019

As the weather in the summer has gotten hotter and hotter, the government has been offering a quick solution – ICE. In June and July 2019, the Immigration & Customs Enforcement (ICE) has served over 3,000 Form I-9  Notices of Inspection (NOI) on employers nationwide.  However, this ICE does not cool down employers; rather, it turns up the heat.  The service of these NOIs is similar to the one week in July 2018 when ICE served 2,738 NOIs  on employers.

Presumably because ICE had insufficient number of auditors to handle the NOIs delivered in July 2018 (I am still awaiting the results on an I-9 audit of a 300 man workforce a year after the I-9 forms were provided and another audit took 10 months to issue a Notice of Intent to Fine), ICE has received an additional $6.5 million to hire new 27 Junior Compliance Officers, some of whom will be staffing four new HSI (Homeland Security Investigation) offices in Kansas City, Charlotte/Charleston, Las Vegas, and Nashville/Louisville.

So, what should an employer do after it receives a NOI/subpoena? Knowing the answer to this question will save an employer valuable time in responding to ICE.

In most cases, two or more ICE agents will hand-deliver a “Notice of Inspection” and subpoena to the employer demanding to inspect certain records. Although the employer is provided three business days to produce its I-9 forms and supporting documentation, an employer may request a short extension of time, a week or less. Often such extensions are granted. The employer may waive the three-day period; however, this should never be done.

The NOI/subpoena will demand a number of documents including: (1) I-9 forms of current employees; (2) Maybe I-9 forms of terminated employees, up to 3 years back (usually it is a year to two years back); (3) Payroll records; (4) Any SSA no-match letters; (5) List of contractors used by the employer; (6) Whether the employer uses E-Verify and/or SSNVS; (7) Names and SSNs of any contract or day labor from staffing companies; and (8) Business information, including Employer Identification Number (EIN), owner’s Social Security Number (SSN), address information, telephone numbers, e-mail addresses, Articles of Incorporation, and business licenses.

Immediately after delivery of ICE NOI/subpoena, an employer should contact its legal counsel, who should immediately locate an immigration compliance/worksite enforcement attorney. It is vital that the employer retain an attorney with experience in immigration compliance/worksite enforcement. I have witnessed too many employers wait until after the I-9 forms are provided to retain appropriate counsel with the experience to deal with I-9 forms and ICE.

Between delivery of NOI and deadline to provide the I-9 forms, the employer, under the direction of the immigration compliance attorney should review I-9 forms to determine if the I-9 forms can be remediated. This remediation process can be the difference between being assessed a hefty fine or receiving a warning notice. If it is determined certain employees may not be authorized for employment, the employer should quickly investigate the matter. If investigation shows unauthorized status, the employer should discharge those employees.

On the designated day, an ICE agent may pick up the subpoenaed documents or an employer may be required to present them at a local ICE office. Remember to copy all documents before turning them over to ICE. During the delivery, the employer’s representative should be cautioned that the ICE agent may attempt to ask questions. If this occurs, the employer’s representative should call their legal counsel, who can be present for any questions. Alternatively, counsel may deliver the documents. Either way, the ICE agent is unlikely to ask any questions if counsel is present in person or by phone.

An ICE forensic auditor reviews the I-9 forms and identifies any technical and/or substantive violations, and any employees whose information cannot be verified by their databases. From my experience, the audit results may be provided in a few weeks to two years.

Prior to completion of the audit, ICE may issue several notices. One is Notice of Technical or Procedural Failures. These are minor errors and ICE must provide the employer ten business days to correct technical violations. The second is a Notice of Suspect Documents listing names of employees whose I-9s could not be verified. The employer must give each employee on the Notice an opportunity to provide “newer and better” documents to establish work authorization. The employer must turn those over to ICE for their review. Rarely do the “newer and better” document(s) establish work authorization.

If the affected employees do not provide documentation to pass muster with ICE, an employer should terminate the employees so it won’t be subject to fines for knowingly employing unauthorized workers. Additionally, civil and criminal charges may be brought against the employer if ICE finds a pattern or practice of knowingly employing unauthorized workers.

At the conclusion of the audit, ICE may issue a Notice of Intent to Fine (NIF) setting worth penalties for the substantive violations, uncorrected technical violations and any knowingly hired/employed unauthorized workers. Alternatively, ICE may provide a Warning notice or Notification of Inspection Results, if an employer is fully compliant (no errors shown in the audit).

After the issuance of a NIF, an employer has 30 days to contest the fine through requesting a hearing before OCAHO.  At this point, employer’s counsel can negotiate a lower amount of fine by asserting ICE errors, statute of limitations for timeliness violations, grandfathered employees not subject to I-9 form requirement, and other defenses. This may take many months based on my experience. If no settlement is reached, then the case will be litigated before OCAHO. Employers on average receive 25% to 35% reduction in penalties, through litigation.


Bruce E. Buchanan is the founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta, where he represents employers in immigration and employment/labor matters and individuals in immigration matters. A 1982 graduate of Vanderbilt University School of Law, he is also “Of Counsel” to Siskind Susser PC on employer immigration compliance matters.

Learn more: Buchanan is coauthor with Greg Siskind of I-9 and E-Verify Handbook, 2d ed. (2017) available at http://www.amazon.com/dp/0997083379. He also writes a blog on employer immigration compliance matters @buchananvisalaw. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.