All U.S. employers are legally required to verify the employment eligibility of every new hire by completing and storing Form I-9 records. If employers fail to comply with these requirements, they may face serious legal and financial consequences. Due to the stricter enforcement of immigration laws and an attempt to enhance the integrity of the U.S. immigration system, the frequency of ICE audits has increased significantly.
As an employer, are you prepared to handle an ICE inspection? If not, it’s essential to act now, as delays will only complicate matters.
This blog discusses the steps to take when your business receives an ICE notice of inspection, so you can effortlessly comply with the entire process.
What is an ICE Notice of Inspection?
An ICE Notice of Inspection (NOI) is a formal notification sent by the U.S. Immigration and Customs Enforcement (ICE). The main purpose of this notice is to inform a business that the agency will review its employment records related to Form I-9s to ensure employers are complying with the I-9 guidelines and all employees are authorized to work in the U.S.
Here’s what it means:
Purpose: It is used to verify that the employer is not violating any I-9 compliance guidelines.
Scope: ICE requests to review the Form I-9 documents for all or some employees hired within a specific period. Sometimes, an on-site visit is conducted.
Timeline: The employer is usually provided 3 business days to submit the required documents to comply with ICE’s requests.
Outcome: Depending on the findings, the inspection can lead to no action, warnings, fines, or further legal consequences.
Why Do Businesses Receive ICE NOIs: Key Reasons
Businesses may receive an ICE notice of inspection in many cases, but some key reasons include:
Employment of unauthorized Workers: If ICE suspects an organization has hired employees who are not legally authorized to work in the U.S.
Incomplete Form I-9s: Potential errors or inaccuracies in Form I-9s or missing documentation during employment verification.
Employee complaints: If an employee identifies a potential discrepancy with the company’s I-9 process and decides to report it.
Prior compliance violations: A history of compliance violations may prompt ICE to conduct frequent audits to ensure the mistakes are not repeated.
Random audits: Routine checks or industry-focused enforcement actions by ICE, especially in sectors like hospitality, construction, manufacturing, and staffing.
What does an ICE Notice of Inspection Contain?
A NOI contains all the essential information an employer must know to ensure compliance with the regulatory guidelines. Specifically, it includes:
The name of the employer or organization.
The exact date and time for the inspection.
The name of the ICE officer who will conduct the audit.
A list of documents ICE requires, including current Form I-9s and additional supporting documents.
A notice mentioning the employer has 3 business days to gather the requested documents.
Records ICE will inspect to ensure compliance with employment eligibility verification.
An explanation of all the possible outcomes, including
NOI results (compliance letter) if the employer is found compliant
Notice of Suspect Documents for invalid or fraudulent documents
Notice of Discrepancies if the work authorization is unclear
Notice of Technical or Procedural failures detailing fixable errors with a 10-day correction period
Warning notice for substantive violations, expecting future compliance
Notice of Intent to Fine (NOIF) for significant or uncorrected violations
Form I-9 Documents Requested by ICE
The main focus of an ICE inspection is always the Form I-9 records. But in some cases, they may also ask for:
I-9 Forms for former employees that are still within the retention period (three years after hiring or one year after termination)
Supporting identity and work authorization documents if your organization keeps copies
Payroll records
E-Verify confirmation records
Business licenses
What is the Three-Business-Day Rule?
According to ICE, the employers will be granted 3 business days from the date of receipt to gather and submit all the requested documents. Employers must prepare their action plan promptly to avoid any last-minute delays or confusion.
These business days exclude any weekends or federal holidays, making it crucial for employers to calculate the deadline properly. If employers fail to submit these documents on time, then they may face serious legal consequences and financial penalties.
What to Do When You Receive a NOI: A Step-by-Step Process
STEP 1: Note the date and time of receipt
Employers must check the deadline date as soon as they receive the NOI, as the three-business-day deadline begins immediately.
Make sure to save this notice in your compliance log and notify the relevant administrative departments, including the HR leaders.
STEP 2: Review the notice thoroughly
Read the notice properly to understand all aspects and make sure you don’t miss out on any crucial information.
Identify whether ICE wants to check your Form I-9 records or if there are any more requests from their end.
STEP 3: Consult your legal counsel
Consult your legal attorney before you start your preparation. Your legal attorney has in-depth knowledge of these audits, so take their guidance throughout the process and let them know if you have any concerns.
STEP 4: Gather and organize all required documents
Gather all essential documents, including the current and past Form I-9 records
Include all supporting documentation such as copies of IDs, payroll records, E-Verify confirmations, and hiring policies.
Include copies of all original documents and save them separately.
STEP 5: Conduct an internal audit before submission
Before the official inspection, conduct an internal audit to identify and rectify any potential errors at the earliest. Check for missing I-9 forms, incomplete fields, and technical errors.
Check the DHS guidelines and correct the mistakes that can be corrected.
Document all corrections and changes that are being made to the records and save them securely.
STEP 6: Submit the documents on time
Submit the required documents within the deadline unless you get an extension for the same.
Use a reliable delivery method that will deliver your documents properly and keep you updated.
Ensure you keep a copy of all the details submitted for your records.
STEP 7: Prepare for follow-up actions
Once ICE reviews your documentation, they may ask for additional records or conduct an on-site audit. Employers must remain ready for all possible outcomes to avoid complications and unnecessary confusion.
Provide training to your HR staff and other relevant team members so they know how to handle a real-time audit confidently.
Be in touch with your legal attorney so they can guide you and help you comply with the federal guidelines.
How Can Employers Prepare for an ICE Inspection?
Employers need to be prepared with a reliable plan to manage ICE audits. Some proactive steps to follow include:
Have a written plan: Employers must have a detailed, easy-to-understand plan to handle ICE audits. This plan should include all essential steps the management should follow in case of an unexpected or scheduled audit, such as who to contact, how the staff should behave, and how the routine operations will be managed during an audit.
Designate a point of contact: Every organization must establish an ICE manager or an executive who will act as the primary source of contact during audits and inspections and a secondary source of contact who will manage the audit in case the primary contact is not available. These officials must receive proper training on addressing complex audit situations so they can confidently manage the inspection without jeopardizing their everyday tasks.
Understand your rights and limitations: An ICE raid is different as compared to other raids, which means there are certain limitations to it. For example, ICE officials are not authorized to investigate your private business area as it is considered off-limits. Employers need to consult their legal counsel to understand their rights to facilitate a smooth audit process.
Train staff: Avoid waiting till the last minute to provide training to your staff, as they won’t be able to understand everything all at once and may get confused. Employers must organize regular training sessions to train HR staff and other members of the team so they get familiar with the audit procedures.
Ensure I-9 compliance: Make sure your organization is complying with the I-9 requirements from the very first day, and all records are saved securely in an accessible manner. Maintaining compliance isn’t a one-day task; it’s a practice businesses need to prioritize to safeguard their image and employees.
Best Practices for Maintaining Compliance During an ICE Inspection
Employers must follow the steps given below to ensure compliance during an ICE raid:
Stay calm and professional: An ICE raid can be a stressful event, but it’s important to stay composed and calm during these audits, as panicking may only make it worse. Make sure you speak confidently and avoid giving unnecessary information to the officials.
Ensure the presence of the designated official: Make sure the ICE manager your organization has selected as the primary source of contact is present at all times.
Inform your legal counsel: Ensure you contact your legal attorney and inform them about the visit so they can guide you accordingly.
Review warrants: Check the ICE officer’s warrant to confirm it is valid and has been signed by a judge. The warrant should mention all important details relevant to this audit, including the address of your business.
Document the visit: Document everything that happens during the visit and add it to your audit log. This information will come in use next time an audit is conducted.
Summary
ICE conducts inspections to ensure that employers follow federal employment laws and that all staff members are legally authorized to work in the U.S. Before the inspection, ICE issues a Notice of Inspection outlining the visit date, the documents required, and the necessary steps to be taken. Employers are usually given three business days to gather and submit these records. In some situations, ICE may also perform on-site checks to review documents and workplace practices directly.
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