When Immigration and Customers Enforcement (ICE) decides to perform an audit of a company’s Employment Eligibility Verification forms (Form I-9), they will issue a Notice of Inspection (NOI). Providing a careful response to an NOI is critical as it lays the platform for communicating, negotiating, and oftentimes settling with ICE. Following the recent decision from the Office of the Chief Administrative Officer (OCAHO), confirming that failing to timely prepare a Form I-9 constitutes both a serious and costly violation, it is important for employers to be vigilant of the fact that ICE continues to conduct I-9 audits. The follow tips are recommended when responding to an NOI.

  • Plan: Have an internal plan in place relating to communication with ICE and dealing with receipt of an NOI. Administrative personnel/receptionists, who are the first point-of-contact at a place of business, should be required to immediately contact the appropriate individual(s) in the event an ICE officer visits the company and issues an NOI. It is recommended that only management or the HR Department should communicate with ICE, noting that any information provided to an ICE officer while serving the NOI could be used against the company later in the audit process. If your administrative personnel/receptionist is authorized to accept and receive an NOI, it is crucial they notify management immediately as the NOI must be responded to within the three days (72hrs) as provided by the law. Having a proper plan in place helps alleviate the panic that occurs when an ICE agent shows up at your place of business.
  • Counsel: Responding to an NOI and communicating with ICE is a complicated process. If not already represented, contact immigration counsel immediately upon receipt of an NOI. Responding to an NOI is a serious process and should not be taken lightly. Although the ICE agent delivering the NOI may seem friendly, they have been known to lead employers to inadvertently make adverse statements which are used against the employer later in the process. The NOI will allow the company three business days to return the requested documents to ICE. Although an employer may believe that its I-9 forms and other documentation are in order, an employer should never waive the three day period allowed to produce the forms. Immigration counsel should conduct an audit of the I-9 forms and make any corrections, where permissible, prior to turning over the documentation to ICE. An immigration attorney who is skilled in responding to NOI’s and working with ICE, will be able to assist a company in both auditing and pinpointing other mitigating factors.
  • Communicate: Communication with an ICE agent should be professional, honest, and tactful. Remember, no matter how pleasant the ICE agent acts, this is a serious matter and not a friendly exchange of information and documentation. If the employer is uncertain concerning any information contained within the NOI, it is appropriate to immediately seek clarification and confirmation from ICE, keeping in mind the three business day timeframe. The employer’s attorney should be included in any communication with ICE.
  • Document: It is equally important to keep an accurate record of anything turned over to ICE. An ICE audit does not actually take place at the employer site, rather it is handled at the ICE field office. The company should make a complete carbon-copy of all I-9 forms and supporting documentation provided to ICE, and request a receipt from the ICE agent. It is further recommended that the employer document any verbal communications with ICE in the form of an email, letter, or written summary.