Our-friend-the-I-9-2Last month, we covered how to prepare for an I-9 audit so you’re ready if you get the Notice of Inspection (NOI) from the Immigration and Customs Enforcement (ICE). Now, we look at what to do after you receive it.

You’ll receive the NOI in person or via certified mail; from there, you have three business days to produce information. Use them. Never, ever waive this right, and let your staff know about it so they don’t accidentally waive the right or reveal information immediately.

The first step after receiving the NOI is to call your legal counsel. Counsel will not only advise you, chances are they know the law much better than ICE investigators. (This isn’t an insult to the investigators; they’re just not legal professionals, nor are they required to be.)

The I-9 audit applies to a particular time period, which will be specified in the NOI. The documents you’ll likely be asked to provide include:

  • A list of all the people who were employed or terminated during the audit period
  • The I-9s for all these folks
  • Quarterly wage and hour reports for all those folks
  • Quarterly tax statements from the audit period
  • Any correspondence you’ve had with the Social Security Administration regarding problems with Social Security numbers
  • Confirmation that you participate in E-Verify
  • General business info (including your articles of incorporation and business license)

Basically, the investigators want to see the I-9 for all employees who were paid, and to make sure all those I-9s were correctly filled out.

If you receive a Compliance Letter, that means you were found in compliance and have passed the inspection! (This is also called a Notice of Inspection Results.) If there were errors, you could receive one or more of these notices:

  • Warning Notice – this means that errors were found, but they seem like honest mistakes and you’re not going to make those mistakes again in the future.
  • Notice of Technical or Procedural I-9 Failures – this refers to errors in, say, spelling or dates. You’ll have a chance to correct the forms. Be sure to do so, or the errors will graduate to the “substantive” level.
  • Notice of Discrepancies – this means they’re not sure if all your employees are actually authorized to work in the U.S. You’ll have a chance to provide additional documentation.
  • Notice of Suspect Documents – this means they found something that makes them suspect that you’ve got an unauthorized worker on your payroll. You and the employee will have a chance to present additional documentation of the employee’s authorization.
  • Notice of Intent to Fine (NIF) – Ruh roh. This means they’ve found “substantive, uncorrected technical, knowingly hire and continuing to employ violations.”

If you get a NIF, don’t rush to pay the fine immediately. You have a right to a hearing, and you can appeal the fine, which often results in a fine reduction of 45-75%. Definitely worth the hassle!


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