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Yesterday, I started this article about I-9 compliance in the construction industry by discussing the damage which may be inflicted by U.S. Immigration & Customs Enforcement (ICE) through a Notice of Inspection (NOI). Today, we will discuss what takes place in an ICE I-9 audit.
In most cases, ICE agents will hand-deliver (occasionally the NOI arrives via FedEx) a NOI and subpoena to the contractor demanding to inspect the I-9 forms of current employees and maybe former employees from last one to two years and other company records, such as payroll, quarterly reports, and SSA no-match letters. Although the contractor is provided at least three business days (sometimes two weeks) 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 contractor may waive the three-day period; however, this should never be done.
Immediately after delivery of ICE NOI/subpoena, a contractor should contact its legal counsel, who should immediately locate an immigration compliance attorney. It is vital that the contractor retain an attorney with experience in immigration compliance/worksite enforcement. I have witnessed too many contractors 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 contractor, 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. Although some ICE offices will not consider your remediation efforts, an ICE top official stated employers should be able to make corrections on their I-9 forms between the time of receipt of an NOI and the time the I-9 forms are received by ICE. Additionally, 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 contractor may discharge those employees.
On the designated day, an ICE agent may pick up the subpoenaed documents or the contractor 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 contractor’s representative should be cautioned that the ICE agent may attempt to ask questions. If this occurs, the contractor’s representative should call their legal counsel, who can be present for any questions. Alternatively, counsel may deliver the documents.
Conclusion of ICE Audit
At the conclusion of the audit, ICE may issue a Notice of Intent to Fine (NIF) setting forth 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 a contractor is fully compliant (no errors were shown in the audit).
After the issuance of a NIF, an employer has 30 days to contest the fine by requesting a hearing before the Office of Chief Administrative Hearing Officer (OCAHO). At this point, contractor’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. However, this is a very important part of the process as you should be able to obtain a sizable reduction on the penalties. The undersigned regularly receives reductions of 25% to 40%. If no settlement is reached, then the case will be litigated before OCAHO. Employers on average receive 25% to 35% reduction in penalties.
Immigration Compliance Policy
Being prepared for a Notice of Inspection/subpoena requires a contractor to have proper procedures in place upon hiring. The best way to have these procedures in place is with an Immigration Compliance Policy. Unless you have previously retained an immigration compliance/worksite enforcement attorney, it is extremely unlikely you have such a policy. One paragraph in your employee handbook does not equal an Immigration Compliance Policy. Under such a policy, every employee responsible for completing I-9 records on behalf of the company should be trained to do so.
Conclusion
I’d rather be safe than sorry – meaning prepare for an ICE audit/inspection or ICE raid, rather than react after ICE has chosen your company.
If after reading this two-part series, you are concerned for your company being I-9 compliant, contact me at bbuchanan@sblimmigration.com. Additionally, I recommend you read The I-9 and E-Verify Handbook, a book I co-authored with Greg Siskind, and available at http://www.amazon.com/dp/0997083379.
