In our recent webinar with U.S. Immigration & Customs Enforcement (ICE) there were a great deal of questions about the process an ICE audit takes. What happens first? Then what? What are the possible outcomes? What are the employer’s options for each?

It starts with a Notice of Inspection
ICE kicks off their I-9 audit with a Notice of Inspection (NOI). Being on the receiving end of an NOI is not a calming experience. ICE may serve you with an NOI in person, or you might receive it from them by certified mail. The NOI spells out exactly which I-9s you need to produce for the inspection. It will typically ask for I-9s for all current employees as well as those terminated in the previous three years, for one or more work locations. The NOI also informs you of your contact at ICE for the investigation.

…and probably a Subpoena
The NOI is often accompanied by a subpoena which requires you to produce other records that allow ICE to corroborate your I-9s. These records may include an employee roster with specific information about each employee, monthly payroll reports, tax statements, business licenses, or other records.

You have three days
At this point you have up to three business days, 72 hours, to pull together the requested records. The NOI will give you the date and time you are required to present your package of records to the assigned ICE inspector or special agent. As you can imagine this does not give you much time! We recommend you always ask ICE for an extension. We’ll cover this and other recommendations in a future post that covers what to do immediately when you are served with a Notice of Inspection by ICE.

Next you may get any of these three Notices
After you turn your I-9s and other documents over to ICE, you then wait for a period of weeks or months. During this time ICE is reviewing your I-9s for completeness and accuracy, and verifying the employee documentation. During this period you can expect to receive one or more of these next notices from ICE. These three notices can be issued at any time prior to the completion of the audit.

Notice of Technical or Procedural Failures, with 10-day turnaround
This notice identifies the technical and procedural violations ICE found in your I-9s, and gives you 10 days to correct them. If the records you turned over to ICE included records created using the paper I-9 form, as discussed in this previous post your error rates will likely be high and it is almost assured you will get this notice. You’ll want to make every effort to correct as many of these errors as possible within the 10 days, to minimize your fine. You’ll have to assign one or more trained I-9 resources to the task, which comes with a cost. But if you compare the resource cost to the penalty $ that can be avoided, you’ll find it is worth it. After ten business days, uncorrected technical and procedural failures are lumped together with substantive violations and assigned the same dollar penalty.

Notice of Discrepancies
This notice asks for additional information in cases where ICE cannot determine an employee’s work eligibility based on a review of the I-9. You should provide the employee with a copy of the notice right away, and give them an opportunity to present additional documentation within the timeframe specified.

Notice of Suspect Documents
If ICE determines that you are employing a person who is unauthorized to work, you will receive a Notice of Suspect Documents. The notice advises of possible criminal and civil penalties for continuing to employ that individual. Don’t panic! There may be an error that can be explained. You should inform the employee without delay, and give them a chance to explain any problems or produce additional documentation within the timeframe specified. If they do so, follow up with ICE immediately. If after reviewing the additional documentation ICE still determines the employee to be unauthorized to work, you have the unpleasant task of terminating the employee.

Then it ends with one of these three Notices
When ICE completes their investigation, you will receive one of these last three notices:

1.  Compliance Notice, or Notice of Inspection Results
If you receive a Compliance Notice, excellent! ICE has found your I-9s to be in compliance. You can breathe easier now. This is an achievement to be proud of, and it shows that your policies and practices have protected your business. If you work for an organization with many locations and high-volume hiring, you know it took concerted effort to bring your organization to a place where it can reliably produce high compliance levels.

2.    Warning Notice
This means ICE found substantive violations, but feels circumstances do not justify a fine, and they have an expectation that your organization will be compliant in the future. While a Warning Notice means you avoided a fine, it also means your organization will go through another ICE investigation. The Warning Notice will include the date of re-inspection.

3.    Notice of Intent to Fine (NIF)
The Notice of Intent to Fine spells out the fine ICE has assessed your organization. A Notice of Intent to Fine can be issued for substantive and uncorrected technical I-9 errors, as well as for violations having to do with knowingly hiring or continuing to employ unauthorized workers. Once you receive an NIF, you have 30 days to respond. What should you do?

Your first option is to try to negotiate a settlement with ICE. More often than not, employers get the NIF fine reduced. The Office of Chief Counsel at the ICE field office may authorize a 10% reduction on their own. A greater reduction can be negotiated with concurrence from the ICE Special Agent In Charge. In the 4-year period ending in 2012, 68% of NIFs were reduced, with an average reduction of 40%. Negotiating a fine reduction may become more difficult in the future, however, as there is currently scrutiny on the amounts by which ICE penalties have been reduced.

If negotiating a fine reduction with ICE fails, your next option is to request a hearing with an Administrative Law Judge at the U.S. Department of Justice.

Either the ICE field office or the Administrative Law Judge then issues a Final Order with your final assessed fine. If you don’t take any action within 30 days of receiving the Notice of Intent to Fine, ICE will issue the Final Order.

This post addresses a number of questions that came up in our recent webinar with ICE. Check back or sign up to be alerted as we cover other topics from the ICE webinar in future posts. Other posts in the series include:

• 3 ways to clean your existing I-9s
• 5 steps to take BEFORE ICE knocks
• The I-9 Audit: Lessons Learned in today’s webinar with ICE
• You just got an ICE I-9 audit notice: NOW WHAT??

Discover how Tracker’s auto-cleansing I-9 remediation solution can correct up to 74% of your paper I-9 records automatically, while you sleep.

Disclaimer: The content of this post does not constitute direct legal advice and is designed for informational purposes only.