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Five Pointers for Employers in Responding Effectively to an ICE I-9 Audit

June 2013

By: Ryan M. Helgeson, Esq.

When Immigration and Customs Enforcement (ICE) shows up at your business and requests your business' Forms I-9, it can be a stressful situation. Here are five tips to help you respond to an ICE inspection:

1. Never waive the three-day notice to produce the I-9 Forms. When an employer is presented with a Notice of Inspection by the ICE agents, the employer has three days to turn over their I-9s to ICE. The Notice will provide the option to waive this three day period and turn over the I-9s immediately. Even if you believe your I-9s to be in proper order, you should take the three days to consult with an attorney and double-check your compliance with the appropriate regulations.

2. Carefully review the Notice of Inspection and Accompanying Subpoenas. When ICE arrives at your business, they may also issue a subpoena for other business records. [A subpoena is not necessary for the Forms I-9.] Careful review of the Notice and Subpoena will ensure that you are providing everything that is requested and also ensure that your business is not turning over any documents that may be unnecessary to the audit. Your business should only provide what is asked for and nothing more.

3. Carefully document everything that is turned over to ICE. The I-9 audit will not occur at your place of business. You will be providing the documents to ICE to review at their field office. The review can take several months or more to complete. Additionally, ICE will be reviewing the original Forms I-9. Consequently, you should make copies of all Forms I-9 and retain that copy for your business' use while the audit is in progress. By carefully documenting everything that is turned over to ICE, you can ensure that all business records have been returned at the conclusion of the audit.

4. Through your attorney, make contact with the ICE Auditor. When the Notice of Inspection is served, you will receive the auditor's contact information. You should confer with your attorney to determine the best of course of action. Will you want your attorney to act as the intermediary between the ICE auditor and your business? Will you want ICE to serve any subsequent notices at your business or to your attorney? These questions and more should be answered in your first contact with the ICE auditor. Additionally, because each auditor handles cases differently, you can find out information about the timeline and the process of the audit, and any expectations the auditor may have for your business.

5. Use your three days wisely. Use the three days provided to respond to the Notice of Inspection to ensure that your documents are in order. First, contact your immigration attorney. Second, move forward with gathering the requested forms and making necessary copies. Third, if time allows, have your attorney review your Forms I-9 for any problem areas and, if allowed by local rules, consider making necessary corrections before providing the forms to ICE.

While the most important step your business can take to prepare for an I-9 audit is to have your I-9 Compliance and Response Plans in place well before ICE ever shows up, following the above 5 pointers can ensure a less stressful audit. To have even less stress, your business can conduct its own I-9 self-audit to ensure preparedness and compliance.

If you have questions regarding I-9 compliance or any other employment immigration question including Visas, Attorney Ryan Helgeson is happy to help you. Please contact Ryan at (630) 377-1554 or at ryhelgeson@wesselssherman.com.