ICE Releases Internal Guide to I-9 Inspections and Penalties

Immigration and Customs Enforcement (ICE) has released a partially redacted version of its official I-9 inspection and penalty guide which is used by ICE Special Agents and Forensic Auditors during an I-9 investigation. The memo, previously classified as “Law Enforcement Sensitive” and reproduced below, was obtained courtesy of the American Immigration Lawyers Association (AILA) after repeated requests and threatened litigation. The guidance was initially drafted on May 28, 2008; revised on November 25, 2008; and then revised again on July 13, 2009. Since that time, ICE has also publicly posted its Form I-9 Inspection Overview (December 2009) and New Enforcement Strategy (April 2009), which incorporate many of the same instructions and overall process. ICE Internal I-9 Guidance – Employers and counsel involved in I-9 compliance matters may find this internal guidance helpful, particularly because it includes a fairly detailed account of the inspection process, penalty determinations, affirmative defenses, and notices which may be issued. There are also some other insights which have not been specifically addressed in prior documents. These include the following:

  • The inspection of I-9s may consist of a review of all forms or a random sampling at the discretion of the ICE special agent.
  • The regulation only requires that the employer provide the Forms I-9 for inspection. If an employer declines to provide additional info (such as payroll) as requested, the ICE Special Agent will use an administrative subpoena or other legal process to compel production.
  • ICE considers the following I-9 errors to be technical violations (these are in addition to those mentioned in the INS Virtue Memo which originally defined the concept of technical versus substantive violations): (1) use of the Spanish version of the I-9 anywhere except in Puerto Rico; (2)  failure to indicate “Individual underage 18” in Column B for employees under the age of 18 using only a List C document; and (3) failure to indicate “special placement” in Column B for employees with a disability using only a List C document.

While there is some overlap between the three documents, it’s still worth reading all of them to get a clear picture of recent worksite enforcement trends.