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The Ice Man Cometh: What You Can Do After the Notice of Inspection But Before the I-9 Audit Starts

[Editor’s note: today’s blog is courtesy of Gary Endelman of Fong & Associates LLP].

You stare at the Notice of I-9 Inspection in your hot, little hand and wonder why the Gods delight in tormenting you. What now? In three days, assuming you have the good sense not to waiver this advance notice, a modern day Joe Friday from Immigration and Customs Enforcement (“the ICE Man”) will show up on your door step asking for the kitchen sink. So, what do you do? The question of the moment is whether you attempt to correct any I-9 deficiencies assuming they can be remedied, or do law and logic suggest that you wait and see what happens? Here, is where you earn your six figure salary and three hour martini-laden lunches. Read on brave heart.

Let’s start at the beginning, usually a good place for any journey to commence. Will trying to fix the I-9s at this stage do you any good? It may not if the comments made by our friends at ICE to representatives of the American Immigration Lawyers Association on  November 22, 2010 remain current ICE practice. Acknowledging that an employer had the legal right to correct technical I-9 flaws right up to the time they are handed over, ICE went on to pour cold water on what the employer can expect:

If there are technical violations, the employer must be given an opportunity to correct.  However, we view the good faith of an employer differently when corrections are made post-NOI-ICE is tougher on those. We would look favorably upon pre-NOI corrections in some situations where the same correction might lead to a fine if the correction is made post-NOI.  The only violations that the employer will be offered an opportunity to correct by ICE post-NOI are technical ones.

After this dose of good cheer, consider the sage warning of immigration expert Kevin Lashus who reminds us what we would rather forget, namely that any self-help corrections at the post-NOI stage might make matters worse. A suspicious ICE investigator might not stop at I-9 violations. How about felony counts of tampering with government records or document fraud? Maybe throw in a little perjury or falsified records charge while we are at it? Are we ready for this? How confident are we that our I-9 compliance measures can stand up to this close encounter?

Well, do not lose all hope. Surely the Office of the Chief Administrative Hearing Office (OCAHO) will cut us some slack. If ICE will not be impressed by post-NOI corrections, how about your friendly administrative law judge?  Best not to think about such weighty matters on an empty stomach. Let’s retire to the friendly confines of the Snack Attack Deli in Fayetteville, North Carolina; Judge Ellen Thomas is your judicial proprietor:

Any analysis of an employer’s good faith must accordingly focus first on whether or not the employer reasonably attempted to comply with its obligations …prior to issuance of the Notice of Inspection…there was simply no attempt at compliance prior to the Notice of Inspection. Snack Attack’s subsequent attempts at compliance have minimal bearing on an analysis of its good faith because conduct occurring after the investigation is over is ordinarily outside the permissible scope of consideration. United States v. Snack Attack Deli, Inc., OCAHO Case No. 09A00025 at 10 (Dec. 22, 2010).

OCAHO Judge Marvin Morse made similar comments on other occasions. “ It is only logical,” he reminds us in United States v. Great Bend Packing Co., 6 OCAHO no. 835, 129, 136(1996),”that, as a general proposition, the good faith of the employer is calculated as of the time of Investigation and not thereafter.” To bolster his point, he cites to Chef Rayko, 5 OCAHO 794 at 7 (1995) and United States v. Danny Mathis, 4 OCAHO 717 at 1108(1994). Interestingly, Judge Morse does hold out the possibility that what an employer does after notice of I-9 inspection may be judged less harshly than similar actions once litigation starts. Great Bend Packing Co. at 136.We learn from United States v. Park Sunset Hotel, 3 OCAHO 525 at 4 (1993) that you better not count on mitigating the I-9 penalties through your good faith once you get to the courthouse.

Sounds pretty glum, huh? Figure no point in trying to correct the I-9s now that the Notice of your coming I-9 ordeal has been served? Well, there are some countervailing arguments that you might want to consider before throwing in the towel. Is ICE really giving us the straight scoop on I-9 corrections? Not according to Judge Morse in United States v. Naim Ojeil, 7 OCAHO 984, 986( Jan. 12, 1998). He seems to feel that post-NOI corrections do count for something by Gosh:

I hold that a paperwork violation ceases to be continuing from the time it is corrected…a paperwork mistake, once cured, is no longer a violation…an employer who is in compliance on the day of inspection is no longer in violation. The Government interest in encouraging employers to correct mistakes is considerable and is undermined by punishing employers who correct paperwork mistakes at or before inspection.

Using this logic, I-9 mistakes can and should be corrected right up to the inspection since they are treated as continuing violations until made right. If you look back to how the legacy INS proposed to define good faith compliance in April 1998 after Section 411 of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA) created the three day notice period thanks to the late Congressman Sony Bono, known affectionately in the trade as the “I Got You Babe amendment”, you find something rather curious. Back in the day, the INS spoke of the “failure of the employer to prepare Forms I-9 for his or her employees until after the Service notifies the employer through the Notice of Inspection that the Service intended to conduct an I-9 inspection.” So, whatever ICE thinks now, it seems the INS used to think that the calm before the storm still gave the employer time to act. This is particularly relevant if, as some anecdotal evidence suggests, there are ICE officers abroad in the land who are zooming right past the 10 days normally allowed after audit to remedy technical deficiencies and moving straight ahead to a Notice of Suspect Documents followed by a chaser of a Notice of Fines. In this kind of world, maybe best to correct as much as possible.

While ICE may think otherwise, OCAHO advised to stop the bleeding from a paperwork violation.United States v. Rupson of Hyde Park Inc., 7 OCAHO 940 AT 2(1997) and United States v. Curran Engineering Co., 7 OCAHO 975 at 15 (1997). In fact, if you endure an audit and do not correct paperwork snafus, you may be in line for an even bigger fine when ICE returns. That is what happened in United States v. Big Bear Market, 1 OCAHO 285, 303(1989), aff’d by CAHO, 1 OCAHO 341 (1989), aff’d Big Bear Super Market No.3 v. INS, 913 F.2d 754 (9th Cir. 1990). Bad I-9s do not miraculously heal themselves over time.  I-9 sensei Josie Gonzalez reminds us that “An I-9 continues to be a fineable offense if not corrected even after the fine assessment.”  Unless the employee admits to be undocumented with fraudulent papers, it is Josie’s sage guidance to still complete an I-9 even if one does not exist at the time of the NOI! If the client retains you after they turn over the I-9s, consider advising them to continue to make whatever corrections they can.  Big Bear has some good language – take listen:

In my judgment, it does not matter…how many times an employer is charged with a paperwork violation as to a particular individual. The obligation to comply being continuous, liability for noncompliance is continuous also. The result is that the employer remains liable for failure to prepare and present I-9s. Big Bear, 1 OCAHO 48 at 303.

As Kevin Lashus correctly reminds us, it is more a matter of confidence than authority. Know your records, be clear eyed in what your exposure is and come to a balanced yet coldly realistic assessment of how to go forward. On balance, trying to fix what can be fixed after the NOI seems the way to go. But, keep your powder dry and your eyes wide open. When all else fails, do the right thing!

Human Resources Today