As worksite immigration enforcement actions continue to intensify, one of the most consequential tools in the federal government’s arsenal is the I-9 Notice of Inspection (NOI).
In the fourth installment of the Statutes of Liberty Worksite Compliance podcast series, Senior Associate Nick Lowrey is joined by John Connolly, Senior Managing Director at Guidepost Solutions and former Deputy Executive Associate Director of Homeland Security Investigations (HSI) within the Department of Homeland Security. With nearly three decades of federal law enforcement experience, John offers an insider’s perspective on how NOIs work, what triggers them, and how employers should be preparing now.
What Is Homeland Security Investigations (HSI)?
HSI is the investigative arm of the Department of Homeland Security, housed within Immigration and Customs Enforcement (ICE). Unlike ICE’s Enforcement and Removal Operations (ERO) division, which focuses on detaining and removing individuals, HSI conducts both administrative and criminal investigations into immigration and customs violations, including worksite enforcement operations.
For employers, HSI is the agency most likely to appear at the door with a Notice of Inspection. This is not a new area of law: the I-9 requirement and the NOI process are both products of the Immigration Reform and Control Act (IRCA). Every U.S. employer, regardless of size or industry, has been subject to these obligations since IRCA’s passage 40 years ago.
What Is a Notice of Inspection — and What Happens When You Receive One?
A Notice of Inspection (NOI) is the formal first step in an HSI worksite enforcement investigation. When an agent presents an NOI, the employer is legally required to produce its I-9 forms. Critically, IRCA entitles employers to at least three business days before they must respond. Agents cannot demand I-9s on the spot.
In practice, HSI frequently accompanies the NOI with an administrative subpoena, which can request additional documentation, including a current employee roster with hire dates and a list of terminated employees from at least the prior year (since I-9 retention obligations extend beyond the end of employment).
One important and relatively recent development: NOIs are now explicitly instructing employers that they may not make any changes to their I-9 forms after receiving the notice, even within the three-day window. This is a meaningful shift. Historically, some employers used those 72 hours to make corrections, and that is no longer permissible.
What Triggers a Notice of Inspection?
Not every employer is equally likely to receive an NOI, but no employer is immune. As discussed in the episode, common triggers include:
- Prior enforcement history — Employers that have previously been audited or investigated by ICE or HSI may be re-audited to confirm ongoing compliance.
- High-risk industries — Construction, hospitality, food service, landscaping, and agriculture have historically drawn heightened scrutiny due to workforce composition and hiring volumes.
- Leads from other enforcement activity — When ICE apprehends an individual for any reason, immigration-related or not, agents routinely ask where the person works. That answer can become a referral to HSI for a worksite investigation.
- Cross-agency data sharing — Federal agencies increasingly cross-reference payroll, tax, and immigration records. A discrepancy in an unrelated regulatory context can trigger immigration scrutiny, and vice versa.
The Shifting Definition of “Substantive” Violations
One of the most significant recent developments in worksite enforcement is HSI’s updated guidance on what constitutes a substantive I-9 violation, as opposed to a technical error that might historically have been correctable without penalty. The agency has published a fact sheet that narrows the category of technical violations and elevates a broader range of errors to substantive status.
Even common documentation errors, such as recording an A-Number in Section 2 instead of the required document number, can now constitute a substantive violation even if the employer retained a copy of the underlying document. Substantive violations carry per-form fines that can range from roughly $200 to $2,000 or more per I-9, meaning that a pattern of the same error across a large workforce can generate significant exposure quickly.
Both Nick and John note that it remains to be seen exactly how HSI will apply the new fact sheet in practice, but employers should plan for a stricter enforcement posture.
The Case for Getting Your House in Order Now
The consistent advice from attorneys and other professionals in worksite compliance is that the time to address I-9 compliance is before an NOI arrives, not after. Once a notice is served, employers lose the ability to remediate errors, and the audit process itself can stretch for a year or more as investigators work through a potentially large volume of forms.
An internal audit team is a good first step, but it is unlikely to surface critical issues. External counsel or compliance consultants bring a perspective that more closely mirrors what government auditors will actually find.
Employers should also be aware that the government is increasingly using artificial intelligence tools to conduct first-pass reviews of I-9 documentation, making large-volume audits faster and more efficient, and raising the stakes for organizations that have deferred addressing known compliance gaps.
Key Steps for Employers to Take Now
- Conduct a thorough I-9 audit internally or with outside counsel to identify and address errors while correction is still permissible.
- Review your written I-9 compliance policy to ensure it reflects actual practice and accounts for recent guidance changes, including the updated substantive violation standards.
- Assess consistency across all hiring locations and business units, including any entities acquired through merger or acquisition.
- Train frontline staff, such as security personnel, receptionists, and others likely to be the first point of contact, on what to do if an ICE or HSI agent arrives, including who to contact immediately.
- Develop a written rapid response protocol that addresses NOIs as well as other types of government visits (administrative warrants, judicial warrants, requests to locate specific individuals).
- Evaluate whether transitioning from paper I-9s to an electronic system is appropriate; and if so, consult with counsel before making that move, as electronic I-9 programs carry their own compliance requirements, which were covered in Episode 35, Part 2.
The next and final episode in our Worksite Compliance series will focus on E-Verify desk audits, offering guidance for employers currently enrolled in the program.
If you have questions about your organization’s I-9 compliance program, need assistance preparing for a potential audit, or have received a Notice of Inspection, please reach out to a member of Klasko’s Worksite Compliance Team or request a consultation.
Listen to the full episode to learn how your organization can prepare for today’s evolving enforcement landscape. Subscribe to Statutes of Liberty on Apple Podcasts, Spotify, Amazon Music, and JioSaavn.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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