We received a Notice of Inspection from the federal government requesting documents related to our Form I-9s and other business documents. How do we respond to this notice?
All employers must comply with the Immigration Reform and Control Act (IRCA) by verifying that a new hire is eligible to work in the United States. Employers must use the Form I-9 to comply with this requirement.
To ensure that employers are complying with the ICRA, the federal government is authorized to conduct an administration inspection process. Although a few federal agencies such as the U.S. Department of Labor and U.S. Department of Justice may investigate employer IRCA compliance, a Notice of Inspection (NOI) usually will come from Homeland Security Investigations within the Department of Homeland Security.
Receiving an Inspection Notice
Employers that receive an NOI will have at least three business days’ notice to prepare the production of all documents that are requested. The NOI may request documents such as payroll records, active and inactive employee lists, business license and other records in addition to the Form I-9 records.
In addition to the federal NOI response, California law requires employers to provide additional notice to their own employees.
California employers must post a notice to all current employees within 72 hours of receiving the NOI. The notice must be posted in the same language that is normally used to communicate employment-related information and must include:
- The name of the immigration agency conducting the inspection;
- The date the employer received the NOI;
- The nature of the inspection, if known; and
- A copy of the NOI.
If the employees have a collective bargaining representative, this notice must go to that representative as well.
Responding to Inspection Results
Once the federal agency has received and reviewed the documents, it will issue its investigative findings in writing. The several possible outcomes include, but are not limited to: a letter of full compliance, a notice of technical or procedural failures in the Forms I-9 and a notice of “suspect documents” — that the documents reviewed may not relate to the employee or establish the employee’s eligibility to work in the United States.
Once the inspection results are received, employers need to prepare any potential response and take actions as required based on the results. Additionally, under California law, the employer must provide a notice to any “affected employees” identified by the inspection results as potentially lacking work authorization or having other document deficiencies.
The notice must be provided directly to each affected employee — and any collective bargaining representative — within 72 hours of receiving the inspection results and must include:
- A copy of the written immigration agency notice informing the employer of the inspection results; and
- A written notice of the employer’s and affected employee’s obligations arising from the inspection which contains:
- A description of the deficiencies or other issues directly relating to the affected employee;
- The timeframe for correcting the issues;
- The date and time of any meetings with the employer to correct the issues; and
- The employee’s right to representation during any meeting with the employer.
Conducting Audits
To help mitigate against inspection issues, employers should conduct regular internal Form I-9 audits to ensure ongoing compliance and to correct any errors before an inspection notice is received.
When conducting an audit, ensure that the methods for the audit selection criteria don’t appear to be discriminatory or retaliatory. For example, selecting for review only employees without U.S. citizenship documentation could result in an immigration-related discrimination claim.
Employers should discuss with legal counsel any questions about conducting Form I-9 audits and responding to NOIs.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
