Every administration had immigration law enforcement high on the list of priorities, and the current one is no different. For employers, this means a good chance to receive an I-9 Notice of Inspection (NOI) and the need to be prepared to demonstrate immigration compliance. These inspections may include much more than I-9 forms. Immigration and Customs Enforcement (ICE) may also inspect payroll records, past employee records, tax statements, earnings statements, correspondence with Social Security Administration, and other relevant documentation. Providing an adequate response to the I-9 Notice of Inspection is critical as it lays the foundation for communicating, negotiating, and often settling with ICE.
Significance of I-9 Form and I-9 Inspection
All U.S. employers are required to verify individuals who are authorized to work in the United States. Given that Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States, employers need to ensure its proper completion.
Employers who are found to violate the verification and employment eligibility requirements may be subject to criminal and civil sanctions. A comprehensive I-9 compliance program including I-9 completion, policies, re-verification, audits, and training is, therefore, an absolute must.
ICE notifies of an I-9 inspection by serving an employer with an I-9 Notice of Inspection. Technically, this means that within the 72-hour deadline, an employer should be ready to demonstrate and confirm compliance with employment eligibility verification laws. In some circumstances, ICE may exercise its power to seize the forms immediately through subpoenas and warrants.
Use this comprehensive guide to find out how to avoid substantive and technical violations employers may be imposed fines for in the course of I-9 inspections and ensure constant I-9 compliance.
Steps to Follow upon Receiving an I-9 Notice of Inspection
If an employer receives NOI – there is not much time to hesitate or wait – they should get ready and get ready properly. There are no excuses for failing to observe immigration legislation and all the interaction with authorities in this matter should be taken with utmost seriousness. Here are some tips to keep in mind as you prepare for an I-9 inspection:
Secure a Thorough Examination of the I-9 Notice of Inspection Received
The I-9 inspection an employer is about to be involved in might happen in person or they may need to send the documents by mail. Whatever the case, they need to know what exactly is expected of them: the scope of the audit and the manner in which it would be conducted, and examine all the relevant information pertaining to it such as whether the request is for both current and terminated employees and thetimeframes covered by the NOI.
As the best response is always based on knowledge and awareness, it is important to keep up to date with the legislation to secure the employer’s part of I-9 verification and empower all the staff involved in the process to handle it with confidence and expertise.
Perform an Internal I-9 Audit
The Inspection will focus on your I-9 documentation in full depth. If self-audits are not yet on your list of best practices, now is the time to prove their worth in reality. Take advantage of the advance notice you received to gather the documents, and, to the best of your abilities – make sure to check the forms are current, mistake-free, and based on authentic work authorization documents.
Follow the instructions to correct mistakes if any are found, making sure that there is a Form I-9 for every employee. Self-audits should be incorporated into your HR routine, and getting ready to receive an I-9 inspection by ICE is your last chance to get it right before the inspection occurs.
Prepare for Possible Outcomes
Upon inspecting I-9 forms and other documents included in the I-9 Notice of Inspection, ICE notifies the employer of the results in writing. Failures to comply can be classified into substantive violations and technical or procedural violations.
The types of I-9 notice of inspection vary, but the following represent the most common ones:
- Notice of Inspection Results, also known as a compliance letter, declaring that the business is fully compliant;
- Notice of Suspect Documents, issued when ICE determines that an employee is unauthorized to work, and advises the employer of the possible criminal and civil penalties for continuing to employ that person, including possible cures for the situation;
- Notice of Discrepancies,issued when identity or employment eligibility could not be verified for some employees, asking for additional documents;
- Notice of Technical or Procedural Failures,issued when technical violations get identified in I-9 documentation, to be corrected within 10 business days to avoid higher fines;
- Warning Notice, issued when the discrepancies found were only technical or procedural and no sanctions will be imposed, also with a 10-business-day deadline for corrections;
- Notice of Intent to Fine, the least popular type, involves findings of substantive, uncorrected technical information and knowingly hiring and continuing to employ those deemed unauthorized to work. After receiving this notice, employers have 30 days to request a hearing with an administrative law judge.
When determining penalties, ICE considers different factors, including whether there was a good faith effort to comply. Therefore, taking a proactive approach to keeping everything in order will help show progress toward compliance.
Stay Ready for the Next I-9 Notice of Inspection
Despite all the complexities of I-9 verification which may cause headaches during an I-9 inspection, employers can reduce or even eliminate fines if they take steps to correct their issues on time.
Responding to an I-9 Notice of Inspection and communicating with ICE is a complex process and should not be taken lightly. Even if I-9 forms and supporting documentation are in order, employers should never waive the three-day period allowed to produce the forms. If an extension is needed, submit a request with the reason and a reasonable proposed timeline for when the employer can comply with the NOI. Whether or not the extension is granted depends on the agent handling the case.
This is, as usual, easier said than done. Many employers find the faults in I-9s upon performing a self-audit, forms stacked with errors and omissions. To secure constant control over data handled during the I-9 verification process and avoid the surprise of not being able to find some of the forms on time, employers should consider automating the entire I-9 administration process. This will not just improve compliance and reduce risks of fines and penalties stemming from ICE inspections, but also simplify and speed up the process. This will be of special significance when responding to I-9 Notices of Inspection, enabling businesses to act within the mandatory time frame and take corrective actions before ICE inspections come along.
Automate the I-9 verification process to simplify verification of identity and employment authorization and ensure ongoing compliance throughout the employee lifecycle.
