Friday, February 26, 2010

Preparing for ICE Employer Inspections

With some preparation and a plan, an employer can successfully navigate the receipt a Notice of Inspection (“NOI”) from U.S. Immigration and Customs Enforcement (“ICE”).

All U.S. employers must verify the identity and authority to work of its newly hired employees. After seeing the new hire’s documentation of identification, the employer documents its compliance with the law through the I-9 form.

The receipt of a NOI indicates that ICE wants to inspect an employer’s records to ensure that the employer is complying with the law. ICE will give the employer 3 business days to produce its I-9 forms. ICE will likely also request other documentation, such as a copy of the employer’s payroll or a list of the employer’s employees. ICE will compare the list of employees with the I-9 forms, to determine whether any documentation is missing or out of order.

The best result from an inspection is a Notice of Inspection Results. This is also called a compliance letter. This letter informs the employer that it was found to be in compliance.

ICE could also issue a Notice of Suspected Documents. This is an indication that the employee is unauthorized to work. ICE will notify the employer of the possible fines and criminal penalties for continuing to employ the person. However, the employer will have an opportunity to present additional evidence if it believes ICE has reached its conclusion in error.

ICE could issue a Notice of Discrepancies. Through this notice, ICE is notifying the employer that it has been unable to determine the work authorization of the employee. The employee is to be given an opportunity to present additional documentation to ICE to prove his or her work authorization.

If ICE finds a technical violation of the law, it will issue a Notice of Technical or Procedural Failures and give the employer ten days to comply. The failure to correct the technical violations becomes a substantive violation and could result in a monetary fine.

A Warning Notice is issued where ICE finds substantive violations, but determines that monetary fines are not called for.

Finally, if ICE determines that the employer has committed a serious substantive violation or has knowingly hired or continued to employ a person who is unauthorized to work, ICE will issue a Notice of Intent to Fine (“NIF”). The employer will be required to put an end to the illegality. The employer may also face a fine and criminal prosecution. The employer may also be “debarred” by ICE, meaning that the employer will not be permitted to participate in federal contracts, or receive other federal benefits.

When ICE finds an employer has knowingly hired or continued to employ an unauthorized worker, it may impose fines ranging from $375 to $16,000 for each violation. The amount of the fine will depend on five factors: (1) the size of the business; (2) good faith efforts to comply; (3) the seriousness of the violation; (4) whether the violation involved unauthorized workers; and (5) any history of previous violations.

If ICE issues a NIF, it will also issue a charging document specifying the alleged violations of the employer. The employer may choose to negotiate a settlement with ICE, request a hearing, or do nothing. If the employer takes no action, ICE will issue a final order.

Of course, the best way to ensure that ICE finds no violations is to adopt a procedure to ensure compliance with the law. This procedure should include periodic self-audits to test whether the procedure works adequately. Consultation with an attorney can assist the employer in putting the procedure together, and testing its efficacy.

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