As employers brace themselves for the next wave of Form I-9 audits, it’s critical to plan a response strategy which is both thorough and efficient. Step 1: analyze a real-life I-9 subpoena and notice of inspection to ensure compliance on each point.

This subpoena and notice of inspection (courtesy of the American Immigration Lawyers Association) was issued by the ICE office in Seattle, Washington as part of the 1,000 I-9 audits sent last week. The subpoena commands the employer to personally appear before the ICE local office to give testimony and provide the requested documents. As is customary, the employer is given 3 business days. The subpoena below speaks for itself, but here are some interesting observations:

• The investigators are requesting records of all current employees as well as any employees terminated in the last year (from Oct 2008)

• Investigators will look to see if the employer has properly handled rehired employees

• Independent contractors, temporary staff from an agency, and “on-call” individuals will be scrutinized as the employer must produce a roster and supporting documentation

• Employers must produce Social Security no-match letters (technically known as “Employer Correction Requests”), although again, it is only going back 1 year

• Employers must provide all immigration filings for foreign national employees requiring visa sponsorship

• The NOI requests more than just I-9s: the employer must also provide employee roster, payroll reports, quarterly tax statements with the IRS, state unemployment insurance tax reports, etc.

• Corporate information (articles of incorporation, business license, and annual report) must be furnished

• Investigators will consider whether the employer participates in E-Verify

• The employer must also provide copies of the organization’s I-9 procedures or policies, if available.

In reviewing these points, it’s important to consider the I-9 inspection process and newly released penalty guidance. Many technical I-9 violations can be corrected now, and developing a proper I-9 procedure (requested above) clearly demonstrates good faith. If you need assistance getting started, contact Tracker Corp for a free I-9 and E-Verify compliance kit.