On June 15, 2011, U.S. Customs and Immigration Enforcement (“ICE”) issued 1,000 Notices of Inspection (“NOI”) of I-9 forms and administrative subpoenas to U.S. companies. This is the largest I-9 inspection action since ICE issued 1,000 NOIs in November 2009, but unlike the 2009 action, ICE did not publicize this most recent enforcement effort. This wave of NOIs continues a pattern of inconsistent document requests and timelines for companies to respond.
Inconsistency and Ambiguity for Current and/or Terminated Employees
Although some NOIs requested I-9s only for current employees, most NOIs sought I-9s for both current and terminated employees. An NOI for only current employees only also could be accompanied by a notice that I-9s for terminated employees may be requested, at the discretion of the inspecting agent.
ICE was ambiguous and inconsistent in its request for I-9 forms for terminated employees. For example, in one instance ICE demanded I-9 forms for current employees, then noted that the information requested related to all employees on the payroll for the past two years. Similarly, in another NOI, ICE demanded I-9 forms for all current employees, then stated that “all information requested” is for current employees, as well as employees terminated since October 1, 2010.
In another example, ICE requested I-9s for all current employees, “as well as terminated employees from 2009 to present.” This is an example of a request that may exceed the employer’s I-9 retention requirements. An employer is required to retain an I-9 for one year from the date of termination, or three years from the date of hire, whichever is longer. If an employee had worked for the company for more than three years, and his or her employment was terminated in 2009, the employer should no longer have that I-9 form in its files. This is an example of a request that should be negotiated to conform to regulatory requirements.
Inconsistent Timelines for Response
The time that ICE provided for companies to respond to these NOIs varied significantly. Under 8 C.F.R. § 274a.2(b)(2)(ii), a company must be provided “with at least three days notice prior to an inspection of the Forms I-9.” Several ICE offices limited the response time to three business days, while other ICE offices provided the companies with anywhere from four business days to 28 days to respond to the NOI. Several ICE offices that set a three-day response deadline were inflexible in negotiating that period of time, despite the discretion given to ICE to provide more than three days. In at least two instances, ICE verbally notified the companies of the impending NOI the day before the NOIs were served.
Inconsistent Supporting Document Requests
ICE was equally inconsistent in its requests for documents other than the I-9 forms. A few NOIs were accompanied by a business questionnaire, or in at least one case, a partial questionnaire. In addition, at least one agent provided an outdated version of M-274 to the employer. Most NOIs also included a subpoena with a significant number of additional requested documents.
The most commonly requested documents were:
- Copies of correspondence from the Social Security Administration, sometimes identified as “No Match” letters;
- A list of employees with Social Security Numbers, dates of birth and hire dates;
- Quarterly tax statements, business information such as tax identification numbers; and
- An indication of whether the company was enrolled in E-Verify or the Social Security Number Verification System.
Less commonly requested documents were:
- Annual reports;
- Electronic storage or I-9 generating system manual, policies or procedures;
- Information about temporary staffing agencies used;
- Identification of supervisors and managers; and
- Notices from a U.S. Department of Labor I-9 NOI.
The types of documents requested varied significantly, even where they were issued from the same office and same Special Agent. For example, one Special Agent requested a list of all current and terminated employees, including employees whose forms had been identified as deficient in a prior inspection. The same agent asked another company in the same state for a list of current employees, but included all employees on the payroll for the prior two years. The same Special Agent requested IRS Form 941 from both companies, but was willing to substitute the most recent payroll register for one of the companies. The agent also asked one company, but not the other, for its most recent payroll register and copies of electronic storage/Form I-9 generating system manual, policies and procedures.
The one consistency in the most recent NOIs is that ICE will be inconsistent in its demands. ICE requests and demands vary, even within a single office, in the timelines provided for responding to an NOI, whether I-9 forms are requested for current and/or terminated employees, and the types of documents requested in a subpoena. ICE also varies from one office to the next in their willingness or flexibility to work with companies to establish reasonable parameters for an inspection. What occurs in one location cannot be used as a guide for what may happen in another location.
 Josie Gonzalez, “ICE Worksite Investigations: Regional Differences in ICE I-9 Audit Notices,” American Immigration Lawyers Association Immigration Practice Pointers, 12th ed., pp. 327-330 (2011).