United States: Baby It's Cold Outside: ICE I-9 Audits Increase Over 100 Percent

Last Updated: August 3 2018
Article by Dawn M. Lurie

On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs1) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.

In ICE's press release, HSI reminded employers about its "three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability."

These events have been expected and actually follow prior comments by HSI officials that we previously reported, confirming that 2018 will be a year of increased immigration enforcement.

What Happens When We Receive an NOI? ?

  • An ICE audit begins when an auditor and/or an ICE agent arrives at your doorstep to serve the company with a Notice of Inspection.
  • Service can also be accomplished via certified U.S. mail, return receipt requested. Ensure you have a protocol to have a NOI reach the right party in a timely fashion.
  • If in person, the agent will generally deliver the notice and will request to see a manager or the person charged with Form I-9 duties. The person receiving service of the NOI will need to sign a document acknowledging receipt.
  • The company will be provided three (3) days to respond to the NOI, but extensions may be granted with good reason.
  • NOIs should be taken very seriously. In 2017, the largest judgment in U.S. history for illegally employing undocumented immigrants was levied against Asplundh Tree Expert Co.— the company had to pay a total of $95 million in forfeitures and civil claims.
    • Recent experience indicates that ICE is routinely requesting the Forms I-9 only of current employees. However, the agency may ask for both the current and terminated employees Forms I-9 (within the retention period), and the agent or auditor may expand the scope as necessary at any point during the review.

Frequently, the NOI includes an administrative subpoena with an additional document request in addition to the Forms I-9. Generally, ICE requests the following:

  • Current employee list, indicating the date of hire, termination and rehire where applicable;
  • E-Verify information (case number on the I-9 or case details attached);
  • Copies of quarterly wage and hour reports for a defined period for the specific location;
  • Payroll records for the site;
  • Business entity information (e.g. EIN, business charter, articles of incorporation, and business licenses);
  • List of subcontractors and staffing companies that serve the site;
  • "No Match" or "Mis-Match" letters from the Social Security Administration; and,
  • Business entity questionnaire—provided by HSI.
  • Remember, all document copies will need to be submitted with the I-9s if your business retains copies of documents. Generally, as a best practice, we recommend keeping document copies.
  • Are there any special considerations when using an Electronic I-9 System?
  • Yes, using an electronic I-9 system adds additional responsibilities. In order to respond to the NOI, a company may be asked to:
  • Answer questions about the electronic Form I-9 system;
  • Retrieve and reproduce electronically stored Forms I-9, along with any other requested documents;
  • Provide the agent with the necessary hardware and software to inspect electronic documents; and,
  • Provide the agent with any existing electronic summary of the information recorded on each Form I-9, information relating to the required indexing system, and all audit trails associated with each I-9.

Why did my company receive a NOI?

  • ICE prioritizes investigations involving critical infrastructure and key resources.
  • ICE may have received a tip or lead about the business.
  • It could simply be random.
  • If you were blessed with a NOI in the past, this could be a re-inspection.
  • Your company may sit in traditionally targeted industries, such as the service industry, restaurants and hospitality, construction, brick and mortar retailers (e.g. food, clothing, drugstores, and home improvement), food production, landscaping, cleaning, maintenance, or packaging and manufacturing.

What to consider after receiving a NOI?

  1. Take this seriously. Receipt of a NOI should be taken very seriously without regard to the size of your company. If you receive an audit notice, it is critical that you act immediately and secure an experienced compliance expert to guide you through the ICE inspection process—immediately retaining experienced immigration compliance counsel protects your business. Inquire as to the specific background the attorney has in defending companies in ICE investigations rather than just conducting internal audits.
  2. Do NOT waive your three-day right to produce the I-9s. You will not receive any "credit" for handing the box of I-9s over while the agent is waiting in the lobby.
  3. Notify your management and executive teams. Inform management immediately of the government's request.
  4. Collect information. ICE and your attorney will need a fair amount of information, such as whether or not you are a federal contractor, you use an electronic I-9 system, how many locations you have and what the footprint is, the last time you had an I-9 training, etc.
  5. Communicate carefully. Cooperate with the agent, but remember he/she is not your friend but rather a representative of the U.S. government charged with investigating your business. The person receiving the NOI is not obligated to speak with the agent, but should certainly be cordial.
  6. Be cognizant of timing. Every minute counts—the law provides just three (3) business days to collect the Forms I-9 (and photocopies of supporting documents, if copies were made at time of completion) and produce them to ICE, so ensure that you have taken the time to prepare beforehand by mandating good I-9 hygiene, including auditing for missing and incomplete I-9s.
  7. Consider requesting an extension. Consider whether you require an extension of time. While discretionary, generally, if reasonable ICE will accommodate such a request. At a minimum, ICE will likely provide an extension for the documents outside of the I-9s.
  8. Do not discriminate. Treat employees fairly and consistently. Ensure that existing employees are not arbitrarily required to provide new or updated Form I-9 information or document copies. The Department of Justice's Immigrant and Employee Rights Section (IER), enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. § 1324b. Visit their website for information on how to better understand the anti-discrimination provision of the INA.
  9. Post-NOI checklist. Make proactive plans for training and further cleanup. Work with your counsel to assess potential liability and identify trends on Forms I-9 submitted to ICE. Understand what comes next during the lifecycle of an inspection and what type of violations you may be facing.
  10. ICE has increased the number of worksite investigations in 2018 by over 100 percent compared to previous years. As this author stated earlier this year, given stepped-up enforcement, the Administration's focus on immigration, and a newfound emphasis on interagency cooperation, 2018 continues to be a year for US companies to prioritize compliance in an effort to stay out of the crosshairs of a government investigation. Employers should be taking steps to prepare for increased I-9 compliance which were outlined in a prior Alert. Please feel free to contact the author, Dawn Lurie, at dlurie@seyfarth.com with any questions.


1 NOIs notify companies that the government is going to audit their records to determine if they are complying with relevant immigration compliance laws. Under federal law, employers are required to verify the identity and employment eligibility of each of its newly hired employees, and must also reverify certain employees with expiring work authorization.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions