U.S. Immigration and Customs Enforcement (ICE) recently issued a
wave of Notices of Inspection (NOI) to selected employers requiring
the employers to provide I-9 forms, payroll information, and
business information for inspection. Employers should treat these
NOIs seriously. In almost all cases, these NOIs were issued based
on tips or leads; they were not issued randomly. Employers can face
significant civil monetary penalties for Form I-9 compliance
failures, and egregious situations can lead to criminal
Recommended action items upon receipt of an ICE NOI:
Devote the resources needed to gather the requested
Make a quick assessment of your company's exposure to
potential sanctions for deficiencies in your Form I-9 paperwork,
both for paperwork errors and for any missing I-9 forms.
Depending upon your company's unique circumstances, assess
the desirability of taking limited remedial action to correct Form
I-9 deficiencies before providing the requested material to
Prior to taking any remedial action, you should consult with
knowledgeable counsel about the implications, parameters, and
proper procedures for effecting I-9 corrections at this stage.
Consider whether it is necessary to request an extension of
time in which to respond to the ICE NOI. By law, employers have
three days in which to provide the required material; however, in
some instances ICE may be amenable to a reasonable extension of
Treat the NOI as the initiation of an adversarial process,
which it is, but make every effort to maintain a professional and
cooperative relationship with ICE.
Sanctions for Form I-9 paperwork violations can range from $110
to $1,100 per individual form, regardless of whether the individual
is a lawful worker. Additional potential civil and criminal
exposure could result from knowingly employing unlawful workers and
from knowingly aiding and abetting, harboring, or transporting
unlawful workers. Individual culpability might be ascribed to the
company as a whole. Publicly traded companies face additional
exposure under Sarbanes-Oxley and Dodd-Frank rules, in addition to
potential shareholder suits if immigration compliance violations
result in a loss of stock value.
Morgan Lewis Can Help
The Immigration Compliance Practice at Morgan Lewis advises
companies of all sizes, from start-ups to Fortune 50 industry
leaders, on the creation, maintenance, and defense of immigration
compliance programs. We regularly represent clients in the context
of ICE inspections and employer sanctions, and in litigation before
the relevant courts. Our cross-disciplinary practice includes
leading immigration attorneys, former federal prosecutors, and
former senior federal government officials. Whatever the scope of
your challenges, we have the experience and resources to assist
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