All employers are required by the Immigration and Nationality Act to verify the identity of their employees as well as their employment eligibility. Under this same law, employers are required to keep records that prove their employees’ identities and work eligibility for three years from the date they were hired, or for one year after they ceased to be employed, whichever period is longer.
Inspection as the means to compel employer compliance
Notice of Inspection
To ensure that all employers comply with this verification and record-keeping requirement, the Immigration and Customs Enforcement (ICE) is empowered to conduct inspections of all employers. The process of inspection, audit, or compliance review begins when the ICE issues to an employer a NOTICE OF INSPECTION.
ICE may send its agents or employees to appear at the workplace and personally serve the Notice of Inspection or, they may send it through registered mail. Whether ICE arrives at the workplace in person or the notice arrives by registered mail, it is important for employers to respond to a Notice of Inspection promptly. If the employer has a big workforce, then it is best for administrative personnel such as those in the Human Resources department to handle all responses to a Notice of Inspection received by the employer.
Ensure that the Notice of Inspection received by your office is addressed specifically to the name of the company officer, the company name and the company address. If it is not addressed to your company or the Notice of Inspection contains errors in the company’s name or address, it is best to seek advice from your company lawyer.
Ensure also that the Notice of Inspection sent to you bears the exact date and time designated for the inspection. Ensure as well that the Notice of Inspection names a specific employee of ICE who will conduct the inspection. This is the ICE Auditor.
Three-day period, waiver
Upon receipt of the Notice of Inspection, the employer has three (3) days within which to produce all the documents required by ICE. This includes all Form I-9, all supporting documents submitted as part of the Form I-9 compliance and other documents such as payrolls, list of all employees, articles of incorporation or other business licenses and business registration documents.
The three-day period is counted from the date that the Notice of Inspection is received by you and the date specified in the notice as the date that the ICE employee will conduct the inspection. The ICE Auditor may request that the inspection take place at your worksite – you may consent to this or decline. Usually, inspections are conducted at the ICE Field Office nearest the worksite.
The employer will be required to send the ORIGINAL I-9 forms and the copies of the supporting documents. It is important to gather all the documents requested, make scanned copies and photocopies of the gathered documents. Have the ICE Auditor sign a receipt acknowledging receipt of the originals.
It is important that the employer is given all the three-days to prepare for the inspection. If the employer was not given three-days to prepare for the inspection and the employer is later found to have committed violations, then this may be a circumstance that can mitigate the penalties.
The employer is free to waive the three-day period and allow the ICE agents who brought the Notice of Inspection to conduct the inspection immediately. This is done by signing the waiver at the bottom portion of the Notice of Inspection.
Note, however, that while the ICE agents who served the Notice of Inspection can ask the personnel at the front desk or reception of your workplace to acknowledge receipt of the Notice of Inspection, they cannot and should not sign the waiver unless they are authorized to do so by their company.
Notice of Inspection Results
At the conclusion of the inspection, the ICE is required to prove a Notice of Inspection Results. In this Notice, the ICE will reference the inspection it just conducted, the date it was conducted and the name of the company or employer whose records were inspected.
If, after the inspection, the ICE determines that there is no basis for further investigation, then the notice will indicate this and thank the employer for their cooperation. This is also called a compliance letter, a declaration that the business or the employer is fully compliant.
Notice of Discrepancies
If, however, after the conclusion of the inspection, the ICE determines that some employees’ identities or employment eligibility could not be verified, ICE will issue a Notice of Discrepancies. They are required to list the specific names of employees whose records cannot be verified.
When this happens, the employer will be instructed to assist ICE to interview the employees; or, if the employer believes the employees to be authorized to work in the US, they can assist ICE by certifying the employee, providing the appropriate documentation to reconcile any discrepancy ICE may have found.
Each employee on the list provided by ICE in the notice of discrepancies must be provided with a notice that informs them of the failure of ICE to verify their identity or authorization to work. The notice to the employee will ensure that the employee will have the opportunity to clarify any discrepancies and provide proof of their authorization to work.
This notice essentially lists all the paperwork violations committed by the employer during the verification process. ICE will then proceed to give the employer ten (10) days within which to make corrections on the paperwork violations found by ICE during inspection.
Notice of Suspect Documents
If ICE finds that the documents they inspected are fake or fraudulent, ICE will send the employer a Notice of Suspect Documents. It will state that ICE failed to verify that that the employees listed are authorized to work in the US.
This informs the employer that the documents submitted to them belong to other individuals or that the alien registration number provided were issued to others and not to the employee. It may also state that the employment authorization had expired.
The employer must then send a notice to the employees listed by ICE in the Notice of Suspect Documents so that they can provide other documents and the ICE can re-verify the employees and the new information provided by them.
The Notice of Suspect Documents will contain a warning to the employer that continuing to employ the listed employees without valid documentation will subject the employer to civil penalties and that criminal charges may be brought against them for knowingly hiring or continuing to employee the unauthorized aliens.
Notice of Unauthorized Aliens
Once the ICE has issued the Notice of Suspect Documents and the employees listed in it do not submit new information or upon re-verification, the employees’ identities and authorization to wok still cannot be verified, ICE will issue the Notice of Unauthorized Aliens.
The employer will then need to terminate the employment of the employees listed. If, however, the employee or the employer feel that the employee is authorized to work and that ICE had committed an error in failing to verify the employees’ identity or work eligibility, then the employees may contest the determination by ICE in court.
ICE may decide that although discrepancies were found in the records kept by the employer, the discrepancies were purely technical or procedural. When this happens, ICE may issue a warning notice only and not impose any sanctions against the employer. This will also give the employees and the employer the opportunity to correct mistakes in their records. The period to be given to an employer to correct the paperwork violations must be no shorter than ten (10) days. ICE may require a follow-up inspection and schedule a re-inspection to ensure that all technical or procedural discrepancies have been corrected.
Notice of Technical or Procedural Failures
ICE may find specific technical or procedural failures in the Form I-9 filled in and signed by the employees. Examples of technical or procedural discrepancies may include:
- Missing or misspellings in maiden name
- Missing alien registration number
- Attestation date missing
- Name and address of preparer or translator are missing
- Date in the preparer’s or translator’s certification box is missing
ICE will re-schedule a follow-up inspection so that the employees and the employer can correct the technical or procedural deficiencies on or before the next scheduled re-inspection.
Notice of Intent to Fine
If the ICE has found substantive violations in either the Form I-9 or the documents submitted in support of the Form I-9, or, if ICE has identified discrepancies or deficiencies, and has given ample opportunity to correct such discrepancies or deficiencies and the employer or employee has failed to correct them, then ICE will issue a Notice of Intent to Fine.
This notice will state the specific violations that ICE is accusing the employer of having committed. It will also state the specific provisions of law that the employee or employer has violated. Upon receipt of this Notice of Intent to Fine, the employer will then have 30 days in which to request for a hearing with an administrative law judge.
Final Order to Cease Violations and Pay Fine
When the employer has received a notice of intent to Fine from ICE and has not filed a request for a hearing within 30 days from the date of receipt of the notice, then ICE will issue the Final Order to Cease Violations and Pay Fine. This notice will contain the total amount of fine or civil penalty that the employer must pay.
Should you have any questions or should you need any assistance in responding to any of the notices mentioned above which you may have received, please feel free to call any of our immigration attorneys.