ICE is on the Warpath Against Employers with 3,000 I-9 Audits in 2 Months

By Bruce E. Buchanan

As the weather in the summer got hotter and hotter, the government offered a quick solution – ICE (Immigration & Customs Enforcement). In June and July 2019, ICE 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.

NOIs Will Continue to Grow Each Year

And the NOIs didn’t stop after July. As Mr. Scott McCormack, National Program Director of ICE’s Worksite Enforcement Unit, predicted at an AILA Worksite Enforcement conference, there were more NOIs issued in September because some regions needed more NOIs to meet their target numbers for the fiscal year, ending in September 2019. McCormack also said he expected higher number of NOIs in FY 2020 than in FY 2019. I predict their goal is 10,000 for FY 2020, given that it is an election year.

Another factor that will allow more NOIs is the recent additional $6.5 million to hire new 27 Junior Compliance Officers, some of whom will be staffing Homeland Security Investigations offices in Kansas City, Charlotte/Charleston, Las Vegas, and Nashville/Louisville.

After Delivery of NOI/Subpoena, What Should An Employer Do?

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  the I-9 forms and other company records, such as payroll. Different ICE offices request different records. However, Mr. McCormack stated ICE will be issuing a template of a Notice of Inspection/Subpoena so that all offices will be using the same language. 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.

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. Although some ICE offices will not consider your remediation efforts, Mr. McCormack stated employers should be able to make corrections on their I-9 forms between the time of receipt of an NOI and time 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 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.

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 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. 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.

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.