Example ICE I-9 Audit Notice

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Ever wonder what an I-9 audit notice from U.S. Immigration & Customs Enforcement (ICE) looks like? Here is an example:

Example ICE I-9 Audit Notice Page 1

Example ICE I-9 Audit Notice Page 2

This example is created from a number of real NOIs received by Tracker customers over the past 2 years. (For the record, ICE found the I-9s of these Tracker customers to be in perfect compliance, with 0 errors.)

As you can see the Notice of Inspection usually requires a good amount of supporting documentation.

You’ll also notice that if you use an electronic I-9 solution, ICE requires some specific information about the system. A good vendor should have a standard response package they’ve used successfully in other customer audits, one which has proven to completely satisfy the ICE requirement.  (More detail on this is outlined in our whitepaper: I-9 Eval Guide: Questions You’ll be Glad You Asked.)

A well designed electronic I-9 system will save significant amounts of time during the course of the audit in record extraction, reports, and more.

 

Tracker’s Audit Response Team guides customers through ICE I-9 audits. Employers who use Tracker’s electronic I-9 & E-Verify solution have been rewarded with perfect ICE audit results showing 0 errors.

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

Hiring temporary workers this summer? Beware of these I-9 compliance pitfalls

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Beware of I-9 compliance pitfalls for summer hiresIf you work in hospitality, food services or retail, chances are you are hiring temporary employees this summer. According to a recent survey by Snagajob, 74% of employers in these industries expect to hire temporary workers this summer.

When it comes to summer hires, there are I-9 compliance pitfalls you want to take into consideration. A number of common myths about I-9 & E-Verify requirements for temporary workers get employers into trouble. Before you do your summer hiring, it would be wise to make sure you are not operating under any of these myths.

I-9 COMPLIANCE MYTHS FOR SUMMER HIRES

“Since our temporary hires will only be with the company for a short time, I don’t need to be too concerned about I-9 compliance.”

Fact: Your organization has to live with the I-9 form for a minimum of 3 years for every employee it hires. This includes temporary employees. If Immigration and Customs Enforcement (ICE) conducts an I-9 audit, they can fine you up to $1,100 per form in error, regardless of how long the employee worked for your organization.

“I have 3 days to fill out the I-9 for all my summer hires.”

Fact: While it is true that normally you have a 3-day grace period to complete a Form I-9, there is an exception to this rule that you should keep in mind when hiring temporary workers: If an employee is only hired to work 3 days or less, you must complete the I-9 on their first day of work.

“If the temporary employee has a receipt in lieu of an original document, it will work fine.”

Fact: It is true that normally you can accept a receipt in lieu of a Section 2 document. But here again, there is an exception to this rule that can bite you with temporary employees: If you hire an employee to work 3 days or less, you can only accept original Section 2 documents.

“I can let my managers decide how they want to process the I-9s for workers we re-hire.”

Fact: If you re-hire an employee within 3 years of their original date of hire, you can choose to either complete a new Form I-9 for them, or you can update Section 3 of their original Form I-9. But whichever method you choose, you should use that method consistently for every re-hire at every location. Inconsistencies tend to get scrutinized in an ICE I-9 audit. Be consistent and you’ll avoid the risk of appearing to treat one group differently from another.

“Since these employees are temporary, I don’t have to E-Verify them.”

Fact: If the work location participates in E-Verify, you must E-Verify all new hires at that location, even temporary hires. This is true even if you’ve chosen to use E-Verify voluntarily at that worksite. If your organization is a federal contractor and the temporary hire will work under the contract, or if state or local E-Verify laws mandate use of E-Verify for that location, you must E-Verify all employees you hire to work at that location, even if they work for 3 days or less.

Discover how Tracker’s paperless I-9 solution delivers perfect I-9 compliance for every type of hire. Get flawless I-9s every time, reduce the time your organization spends on I-9 and E-Verify compliance by 85%, and be fully prepared for that I-9 audit.

3 ways to clean your existing I-9s

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Are you worried what an ICE audit might find in your I-9 records? You’re not alone. Many HR execs worry what an investigation by U.S. Immigration and Customs Enforcement (ICE) might uncover. 76 out of 100 paper I-9s have errors, and those errors come with expensive fines, so there is good reason to fear what might be lurking in your I-9s.

So what can you do to mitigate this risk? There are three approaches to scrubbing and cleansing your existing I-9s.

Approach 1: Manually detect and correct errors

Manual I-9 AuditUntil a few years ago, this was the only option available to employers. With this approach you deploy subject matter experts to review the I-9s for errors and to manually fix the errors they find. You can use internal experts, such as I-9 specialists in HR, or external I-9 experts such as attorneys or firms that specialize in auditing and correcting I-9s. Either way, auditing and correcting I-9s by hand on a large scale is extremely expensive as the labor cost adds up very quickly. For this reason not many large employers have done it.

In addition to the cost, if your organization has multiple work locations where your I-9s are stored, you have to decide whether to get the files to the experts (pack and ship your I-9s to a central location) or get the experts to the files. Neither choice is perfect. One complication, for example, is that some errors can only be corrected in person with the employee.

Approach 2: Electronically detect errors, manually correct them

I-9 AuditA few years ago, a set of systems and services emerged that partially automate I-9 remediation. These solutions scan your paper I-9s to convert them into a digital format, then they electronically analyze the I-9s for errors. You get a report that highlights each error. The error report can be delivered in a spreadsheet, or in a system-based format that lets you click through to the records in error, as they are now in electronic format.

In addition to analyzing the paper records you’ve scanned into the system, these I-9 solutions will also import and audit records created in another electronic system.

Newer versions of these systems specify what needs to be done to correct each error, which is significant as it means you can now use non-specialists to make the changes needed to bring your I-9s into compliance.

This partially-automated approach saves you the time of analyzing each record for errors. So instead of having to touch every record, you only need to touch the records in error. On average 24% of paper I-9s are error-free, so there are 24% fewer records you’ll have to touch. And, for the 76% of records you still have to touch, you’ll spend much less time on each record as you no longer need to find the errors. The task is simply to fix the errors that the system has already found for you.

By automating some of the critical elements of I-9 remediation, these systems provide value. However, even with some entire chunks of the manual labor eliminated, most employers still find it cost-prohibitive to remediate a large number of I-9s when each record in error has to be manually touched.

Approach 3: Auto-cleanse your I-9s

Fully automated I-9 remediation solutionA new class of electronic I-9 systems has just recently come on the market. These systems automate both the error analysis and correction. Like the systems in Approach 2, they analyze I-9 records that are scanned in from paper or imported from another electronic system. The difference is these advanced systems automatically correct a majority of the errors for you. With over half of the errors now being resolved without manual intervention, your workload is cut in half or more vs. your effort with Approach 2 described above. For the subset of records you have to touch, the time needed to fix the errors is compressed since the system spells out how to correct each error.

By eliminating the majority of the manual labor, these auto-cleansing systems have finally made it viable for employers to remediate I-9 records on a large scale. The number of employers opting to use these systems is evidence of this. In the first 10 months after it was released, Tracker Corp’s auto-cleansing I-9 remediation solution was used by employers to cleanse over a million legacy I-9 records. These employers collectively eliminated over $500 million dollars in potential liability in just 10 months. Tracker’s product auto-resolves up to 74% of I-9 errors, so employers can now bring their active I-9s into full compliance with a fraction of the effort, time and expense of other approaches.

This post is part of our ongoing series on ICE I-9 audits. Check back or sign up to be alerted as we cover other topics. Other posts in the series include:

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

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

5 steps to take Before ICE knocks

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What comes to mind when you think of an ICE agent handing you a Notice of Inspection?  (ICE, U.S. Immigration and Customs Enforcement, is the government’s enforcement body for Form I-9 compliance.)

If you’re like many HR execs, when you think of this scenario, questions start firing:

Questions3

 

  • What will they find?
  • How bad will it be?
  • How high could the fine go?
  • Could this lead to publicity we don’t want?
  • How will this reflect on me?

 

 

A sense of dread often accompanies these questions.

Get prepared now

During an ICE Form I-9 inspection, you have three days to pull together your response package – 72 hours. This certainly does not leave you any time for reflection and strategic planning. The time to build a parachute is before you need it. And the time to lay the groundwork for the I-9 audit is before you’re served with the Notice of Inspection.

5 steps to prepare your organization

There are five steps every organization should take in advance of an I-9 audit, in order to make the best use of your 72 hours.

Step 1: Communicate your chain of command

MegaphoneA Notice of Inspection (NOI) can be served to any of your locations. This means you need to have procedures in place to ensure that receiving an NOI will trigger an immediate and appropriate response from any of your locations. You should define exactly who in your organization should be notified, and what should happen if they can’t be reached.

As outlined in this post that describes The ICE I-9 Inspection Process, the NOI may be presented in person or sent via certified mail. Having a uniformed officer show up at your door usually sets off alarm bells with staff, which is good as it serves as a call to action. You want to make sure when the NOI is delivered by certified mail it sets off the same alarm bells. You want to prevent the situation where someone signs for the certified mail then puts it in a mail slot or on a desk for the right person to see when they happen to come by next.  Find a way to ensure that anyone who might sign for the NOI at any of your facilities will recognize it as something that requires immediate attention.

Then make sure anyone who might receive the NOI knows exactly what to do. Typically you want the highest level person at the facility to be notified immediately, via a live conversation. Make it clear that leaving a voicemail does not fulfill the requirement. The person needs to be contacted live. Your policy should state what should happen if the right person cannot be reached live.

You also want to make sure the appropriate individuals at your headquarter office are also contacted right away. This usually includes your top HR executive, counsel, and possibly one or more others. Who is responsible for contacting each of these people? What should be the next steps if a person cannot be reached live? Think through these possible scenarios and make provisions for them in your policy. It is fairly typical for the policy to outline a chain of communications. For example, the management team at the office being audited might be responsible for alerting the appropriate people in corporate HR, who in turn are responsible for notifying counsel.

Finally, you’ll need to communicate this policy to the appropriate people at all of your locations, and find a way to keep the knowledge fresh throughout personnel changes and time.

Step 2: Identify your counsel

Magnifying GlassYou will want to engage counsel to represent you during the ICE audit. An experienced attorney will be in the best position to know your rights and advocate for those rights throughout the I-9 audit process. If you don’t have in-house counsel who will be able to represent you during the audit, you should secure appropriate external counsel in advance.

If you are drowning, it is not the right time to learn how to swim. Likewise, if you are in the throes of an I-9 audit, it is not the right time to conduct your search for good legal counsel. Do this in advance.

Step 3: Define your process for record access

RecordsDuring an I-9 audit, ICE often requires you to produce other records that allow them to corroborate your I-9s. These records typically include an employee roster, payroll reports, tax statements, articles of incorporation, and business licenses. Make sure you know in advance where this information resides, and who will be able to produce the requested reports from your various systems and files.

Who in your organization knows how to pull a report for a particular work location showing both employees who are active and those terminated in the past three years, along with hire date, termination date, SSN, birth date and possibly other information ICE may request?

Are there people in your organization who know how to pull payroll reports by location and timeframe or will you have to involve your payroll vendor? If your payroll vendor needs to be involved, what is the process to make immediate contact with the right person? How long will it take them to pull a report?

Who has access to your tax statements? Where are your articles of incorporation and business license stored?

Clear the way in advance so you know the responsible parties and the process for each information source you’ll need. Ensure that you’ll be able to get the information in less than 72 hours. It is to your advantage to get the fastest possible turnaround. The earlier in the process you get the information you need, the more time you have to look for issues and potentially repair those issues.

Step 4: Understand how your electronic I-9 vendor will support you

Computer image no shadowIf you use an electronic I-9 system, you want to understand in advance the support you will get from your vendor. Ask the vendor to outline the assistance they will provide in the event of an ICE audit. Will you have a single point of contact? What is the process for contacting that person and getting immediate attention? What is the process you will use to request the needed records? What is the vendor’s turnaround commitment for producing the requested I-9 records? You must have the records within 72 hours but the earlier you get them the better, as that will give you more time to identify issues and potentially take action to mitigate those issues.

The Notice of Inspection will typically ask you to supply information about the electronic I-9 system you use to ensure it meets the requirements for audit trails, electronic signatures and more. Ask your I-9 vendor for a copy of the information they use to fulfill this typical NOI request. If you use a vendor who serves large organizations, they will have experience helping customers through ICE audits, and the info they submit to fulfill this request has already been vetted by ICE.

Following is a list of questions that in a perfect world you asked when you evaluated your I-9 system. But if you didn’t, we recommend you ask them now, before the ICE audit:

  1. Does your solution log all system activity as required by ICE into ICE-compliant audit trails? At the time the Section 2 and Section 3 signatures are submitted, does your solution make a read-only copy of the I-9 with a date/time stamp? If an I-9 is changed, is a new read-only copy made upon new signature submission, with a date/time stamp?
  2. Please outline the regulatory requirements for electronic signatures, and verify that your solution meets them.
  3. Are there customers of your I-9 system who have gone through an ICE audit? If yes, please describe the audit results for records that were created in your system.

For a full list of questions to ask in order to evaluate an I-9 system, see I-9 Eval Guide: Questions You’ll Be Glad You Asked.

Also, since ICE often asks to see the change history of I-9s, make sure you can pull a summary report from your I-9 system that shows all changes across an I-9’s signing history.

Step 5: Scrub & cleanse your records

Scrub brush with bubblesThe final step to ensure you are ready to make the best of the 72 hours you get in an ICE audit is to make sure your I-9s are ready for ICE scrutiny. This topic is covered in detail in this separate post: 3 ways to clean your existing I-9s.

 

 

This post is part of our ongoing series on ICE I-9 audits. Check back or sign up to be alerted as we cover other topics. Other posts in the series include:

Discover how Tracker’s auto-cleansing I-9 remediation solution can mend 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.

The ICE I-9 Inspection Process

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Lots of Questions in ICE WebinarIn 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
72 hours to deliver records to ICEAt 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.

3 ICE NoticesNotice 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:

Compliance Notice - Excellent!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.

ICE Warning Notice2.    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.

ICE Notice of Intent to Fine (NIF)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:

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.