While so much of the immigration news is focusing on whether President Trump will order Immigration and Customs Enforcement (ICE) to roundup individuals and families to enforce outstanding deportation orders, ICE, through its Homeland Security Investigations, has continued to serve Notices of Inspection (NOI)/subpoenas (also referred to as “silent raids”) on employers throughout the United States. From my observation, there appears to be a substantial number of NOIs served in June 2019. Is this going to be like last July when over 2,700 NOIs were delivered?
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.
Delivery of NOI/subpoena
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. A few of their offices are experimenting with sending the NOI/subpoena by FedEx. This clearly reduces the cost but takes away the fear factor of ICE entering an employer’s facility while “packing.” ICE began to include a subpoena with the NOI a number of years ago presumably to make it easier to pursue in federal court for lack of cooperation.
What Documents are Sought in NOI/subpoena
The NOI/subpoena will demand a number of documents including:
- I-9 forms of current employees;
- I-9 forms of terminated employees, up to 3 years back (usually it is a year to two years back);
- Payroll records;
- Any no-match letters from the Social Security Administration;
- List of contractors used by the employer;
- Whether the employer uses E-Verify and/or SSNVS;
- Names and SSNs of any contract or day labor; and
- 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.
Time Period to Respond
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.
Employer’s Actions after Delivery of NOI/subpoena
Immediately after delivery of ICE NOI/subpoena, an employer should contact its legal counsel, who should immediately locate an immigration compliance/worksite enforcement attorney. Between delivery of NOI and deadline to provide the I-9 forms, the employer, under the direction of the immigration compliance/worksite enforcement 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 the investigation shows unauthorized status, the employer should discharge those employees.
Delivery of Documents to ICE
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.
ICE Notices
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.
Results of the NOI/Subpoena
At the conclusion of the audit, ICE may issue a Notice of Intent to Fine (NIF) setting worth the substantive violations, uncorrected technical violations and any knowingly hired/employed unauthorized workers. Alternatively, ICE may provide Notification of Inspection Results, if an employer is fully compliant (no errors shown in the audit). These are extremely rare.
In between the above types of notices is the Warning Notice. A warning notice means there are no assessed penalties but there were some substantive violations in the I-9 forms submitted. Employers normally should treat this as great news. However, ICE will usually return in a year for a subsequent audit.
Resolution or Litigation
After the issuance of a NIF, an employer has 30 days to contest the fine by 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. See my yearly summaries of OCAHO decisions, which are located at www.lawlogix.com/blog.
If after reading this article, you are concerned over your I-9 compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.
Bruce Buchanan is a Partner at Sebelist Buchanan PLLC. Mr. Buchanan is admitted to practice in Tennessee, Georgia, Florida, and Arkansas, and before the U.S. Court of Appeals for the Fifth, Sixth, Eighth, and D.C. Circuit.
