ICE Notices of Suspect Documents and Discrepancies


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Last Updated: July 2026

An employer undergoing an ICE Form I-9 inspection may receive a Notice of Suspect Documents or Notice of Discrepancies identifying employees whose documentation or employment authorization ICE Homeland Security Investigations, or HSI, has questioned.

These notices create competing legal risks.

Continuing to employ an individual after receiving reliable information that the person is not authorized to work can lead to civil penalties and potentially more serious consequences. However, immediately terminating employees, demanding particular immigration documents, or treating workers differently because of citizenship, immigration status, or national origin can create separate discrimination claims.

The employer must act promptly, consistently, and carefully. Affected employees should generally receive a copy of the applicable notice and a meaningful opportunity to respond before the employer makes a final decision based on the government’s findings.

At a Glance: What Should the Employer Do?

After receiving a Notice of Suspect Documents or Notice of Discrepancies, the employer should:

  • Record the date and method of receipt;
  • Identify the response deadline stated by HSI;
  • Contact immigration compliance counsel immediately;
  • Confirm which employees and Forms I-9 are involved;
  • Preserve the original Forms I-9 and supporting records;
  • Provide each affected employee with the applicable notice;
  • Meet with employees privately and consistently;
  • Allow employees to correct inaccurate information or provide additional documentation;
  • Avoid requesting any particular document;
  • Document each meeting and the employee’s response;
  • Submit an organized response by HSI’s deadline;
  • Avoid backdating, concealing, or improperly replacing the original Form I-9; and
  • Evaluate continued employment individually based on the resulting information.

What Is a Notice of Suspect Documents?

ICE issues a Notice of Suspect Documents when HSI determines, based on its review of Form I-9 and related documentation, that documents presented by one or more employees do not relate to those employees or otherwise are not valid for employment.

According to ICE, the notice also advises the employer about possible civil and criminal consequences for continuing to employ unauthorized workers. The employer and affected employees are given an opportunity to provide documentation demonstrating valid U.S. work authorization if they believe HSI’s finding is incorrect. ICE: Form I-9 Inspection Under INA § 274A

A Notice of Suspect Documents is serious because it may provide the employer with information relevant to whether it knowingly continues to employ an unauthorized worker. It should not be ignored or treated as an ordinary paperwork error.

At the same time, the notice does not justify assuming that every listed employee is unauthorized. Government information can be incomplete, an employee’s name or status may have changed, a document may have been automatically extended, or the employer may have recorded the information incorrectly.

The employer should provide the notice to the affected employee, permit a response, and carefully document the process.

What Is a Notice of Discrepancies?

ICE issues a Notice of Discrepancies when HSI is unable to determine an employee’s eligibility to work based on the Form I-9 and related documentation submitted during the inspection.

The employer should provide the affected employee with a copy of the notice and an opportunity to present additional information or documentation establishing employment eligibility. ICE: Form I-9 Inspection Under INA § 274A

A discrepancy may result from:

  • Incomplete or inconsistent Form I-9 information;
  • A name, date of birth, or identification-number mismatch;
  • A document-recording error;
  • An immigration record requiring clarification;
  • Missing supporting documentation;
  • An incorrect admission or registration number;
  • An employee’s change of name or immigration status; or
  • Other information preventing HSI from confirming employment eligibility.

A Notice of Discrepancies generally means that HSI could not reach a conclusion from the records reviewed. It should not automatically be treated as a final determination that the employee is unauthorized.

Notice of Suspect Documents Versus Notice of Discrepancies

Issue Notice of Suspect Documents Notice of Discrepancies
HSI’s stated finding The submitted documents do not relate to the employee or are otherwise not valid for employment HSI could not determine the employee’s work eligibility from the submitted information
Relative concern Generally more serious because HSI has questioned the documents’ validity or ownership Additional information is needed before HSI can determine eligibility
Employee response Provide information or documentation showing that HSI’s finding is incorrect or establishing current authorization Clarify the discrepancy or provide additional evidence of eligibility
Immediate termination required? Not necessarily before an appropriate response opportunity, but continued employment must be evaluated promptly Ordinarily not based solely on the unresolved discrepancy
Principal employer risk Continuing employment after receiving information that may establish actual or constructive knowledge Acting prematurely or failing to investigate and respond
Discrimination risk Requesting specific documents, applying inconsistent standards, or targeting workers based on citizenship or national origin The same antidiscrimination rules apply

Is an ICE Notice the Same as an E-Verify Tentative Nonconfirmation?

No.

A Notice of Suspect Documents or Notice of Discrepancies arises during an ICE Form I-9 inspection. An E-Verify Tentative Nonconfirmation is generated when information submitted through E-Verify does not initially match available government records.

The procedures and deadlines are different. Employers should not use E-Verify to replace the response requested by HSI unless specifically instructed to do so. An ICE notice should not be processed as though it were an ordinary E-Verify mismatch.

How Much Time Does the Employer Have to Respond?

The deadline stated in the notice or HSI’s accompanying correspondence controls.

HSI may provide a short response period—sometimes approximately ten business days—to notify employees, obtain responses, and submit information. Employers should not assume that every notice provides the same amount of time.

Immediately after receipt, the employer should confirm:

  • Whether the deadline is measured in business or calendar days;
  • When the response period begins;
  • Whether HSI requires an interim acknowledgment;
  • Whether the employer must prove that each employee received the notice;
  • What documentation HSI expects;
  • How the response must be delivered; and
  • Whether an extension is available.

If additional time is needed, counsel should request an extension before the deadline. The employer should not assume that an extension has been granted without confirmation from HSI.

Why These Notices Create Competing Legal Risks

An employer generally may not knowingly hire or continue employing an individual who is not authorized to work in the United States. ICE’s March 2026 Form I-9 inspection guidance warns employers of potential civil and criminal consequences for knowingly continuing unauthorized employment.

The employer must also comply with federal antidiscrimination law.

An employer can create separate exposure by:

  • Terminating employees before providing an appropriate opportunity to respond;
  • Demanding a green card, Employment Authorization Document, Social Security card, or other particular document;
  • Requiring non-U.S. citizens to provide more documents than U.S. citizens;
  • Rejecting documents that reasonably appear genuine and relate to the employee;
  • Applying different response periods based on citizenship or national origin;
  • Retaliating against an employee who contacts the government or asserts workplace rights; or
  • Assuming that an employee is unauthorized based on appearance, accent, birthplace, or nationality.

The correct response is neither to ignore the notice nor automatically terminate every employee listed. The employer should use a controlled process that gives each employee a meaningful opportunity to address HSI’s concern.

Immediate Employer Response

Preserve the notice and document its receipt

Record:

  • When and how the notice was received;
  • Who accepted it;
  • The HSI auditor’s name and contact information;
  • The response deadline; and
  • Any verbal instructions provided by HSI.

Preserve the envelope, transmittal email, cover letter, employee lists, and attachments.

Contact counsel

Counsel should review:

  • The new notice;
  • The original Notice of Inspection;
  • Everything previously submitted to HSI;
  • Communications with the auditor;
  • The affected Forms I-9;
  • Document copies;
  • Payroll and personnel records; and
  • Any prior corrections or reverifications.

The review should determine whether:

  • HSI identified the correct employee and Form I-9;
  • The government reviewed the correct documents;
  • Information was transcribed incorrectly;
  • An automatic extension may apply;
  • The employee previously provided updated information;
  • Additional records are available; and
  • The notice raises possible civil or criminal concerns beyond ordinary Form I-9 compliance.

Do not alter the original records

The employer should not erase, conceal, backdate, or replace the original Form I-9.

Proper corrections may be made when appropriate, but the correction should preserve the original information and show who made the change and when. The employer should retain an explanation when the reason for the correction is not apparent.

Identify every affected employee

Confirm whether each person:

  • Is currently employed;
  • Has been terminated;
  • Is on leave;
  • Works through a staffing company or contractor;
  • Has changed names;
  • Completed a newer Form I-9;
  • Previously underwent reverification; or
  • May have been listed because of a clerical or identity error.

The company should not disregard former employees. HSI may still expect available records and an explanation of their employment status.

Provide the notice to each employee

Each affected employee should receive a copy of the applicable notice and an opportunity to respond.

Document:

  • When the notice was provided;
  • How it was delivered;
  • Who participated in the meeting;
  • The deadline communicated to the employee;
  • Questions asked by the employee; and
  • Information or documentation subsequently provided.

If an employee is absent, remote, or no longer employed, document reasonable attempts to provide the notice.

Conduct meetings privately and consistently

Meet separately with each employee. Avoid disclosing the employee’s inclusion on the notice to coworkers or discussing possible immigration status with personnel who do not need the information.

Use the same general process for similarly situated employees.

Do not demand a particular document

The employer may explain that the employee can provide information or documentation addressing HSI’s concern. It should not demand a green card, Employment Authorization Document, Social Security card, passport, or other specific document.

When Form I-9 correction or reverification is required, the employee generally must be allowed to choose acceptable documentation under the applicable rules.

Establish an internal deadline

The employee should be told both:

  • HSI’s actual deadline; and
  • The employer’s earlier internal deadline for receiving employee responses.

For example, if the submission is due Friday, the employer may request employee materials by Wednesday so counsel has time to review them. The employer should not misrepresent its internal deadline as a separate government deadline.

Create an employee response file

Prepare a separate packet containing:

  • The ICE notice;
  • The Form I-9 reviewed by HSI;
  • Proof that the notice was delivered;
  • Notes from the employee meeting;
  • Properly completed corrections;
  • Documents or explanations provided by the employee;
  • The employer’s response worksheet; and
  • Subsequent correspondence with HSI.

Store these materials securely because they contain sensitive identity, immigration, and employment information.

Preparing for Employee Meetings

Before meeting with affected employees, the employer should:

  • Review HSI’s instructions with counsel;
  • Confirm the government deadline;
  • Review each employee’s Form I-9 and related records;
  • Prepare copies of the notice and Form I-9;
  • Identify possible clerical errors;
  • Determine whether reverification was previously completed;
  • Select company representatives to conduct and document the meeting;
  • Arrange for an interpreter when necessary; and
  • Use consistent procedures.

The employer may have two company representatives present—one to conduct the meeting and another to take notes.

Be Truthful About ICE’s Involvement

If ICE issued the notice, the employer should not claim that the review is merely an internal company audit.

An accurate explanation is:

The company is responding to a Form I-9 inspection conducted by ICE Homeland Security Investigations. HSI identified an issue involving information or documentation associated with your Form I-9. This does not necessarily mean that HSI’s conclusion is correct or that a final employment decision has been made. You will receive a copy of the notice and an opportunity to respond.

Accurate communication protects the employer from allegations that it misled employees or interfered with their ability to respond.

Employee Meeting for a Notice of Discrepancies

Suggested introductory script

Thank you for meeting with us. As an employer, the company is legally required to complete and maintain Form I-9 to verify the identity and employment authorization of employees hired in the United States.

ICE Homeland Security Investigations is currently reviewing the company’s Forms I-9. During that inspection, HSI issued a Notice of Discrepancies concerning your Form I-9. This means HSI was unable to determine your employment eligibility from the information or documentation it reviewed.

The notice does not necessarily mean that you are not authorized to work. You are being given a copy of the notice and an opportunity to review your Form I-9, correct inaccurate information, and provide additional information or documentation addressing the discrepancy.

The company is not asking you to provide any particular document. We will explain the deadline and process, but you may choose which acceptable documentation to provide.

The employee should receive a copy of the Notice of Discrepancies during the meeting.

Reviewing Section 1 With the Employee

The HR representative can say:

This is the Form I-9 you completed when you were hired. Please review the information in Section 1 and tell us whether it is accurate. If any information is incorrect, please identify what needs to be corrected.

The employee should review:

  • Legal name and other last names used;
  • Current address;
  • Date of birth;
  • Citizenship or immigration-status attestation;
  • Alien Registration Number or USCIS Number, when applicable;
  • Form I-94 admission number, when applicable;
  • Foreign passport information, when applicable;
  • Employment-authorization expiration date, when applicable;
  • Signature and date; and
  • Preparer or translator information, when applicable.

If Section 1 is accurate

Document that the employee reviewed Section 1 and reported no changes. Do not make unnecessary entries on the original form merely to show that the review occurred.

If the employee identifies an error

Section 1 belongs to the employee. The employee—not the employer—should ordinarily correct inaccurate information.

The employee should generally:

  • Draw a line through the incorrect information without obscuring it;
  • Enter the correct information;
  • Initial the correction; and
  • Date the correction.

The employee should not backdate the correction or conceal the original entry.

If the employee requires assistance, determine whether Supplement A, Preparer and/or Translator Certification, must be completed.

If the employee is unavailable, consult counsel rather than changing Section 1 on the employee’s behalf.

Reviewing Section 2 With the Employee

The HR representative can say:

Section 2 identifies the documents presented when the company completed your Form I-9. According to the form, the company recorded the following document or documents: [identify the documents].

Please review this information and tell us whether it accurately reflects what you presented. Because HSI was unable to determine your employment eligibility from the records it reviewed, you may provide additional information or documentation addressing the discrepancy.

The company is not requesting any particular document.

If Section 2 contains an employer recording error

The employer representative—not the employee—should generally correct Section 2.

The correction should:

  • Preserve the original entry;
  • Enter the accurate information;
  • Be initialed and dated by the employer representative; and
  • Include an explanation when the reason is not otherwise clear.

Do not backdate Section 2 or sign as though the correction occurred at the time of hire.

If the employee provides additional documentation

Determine whether the documents are being:

  • Submitted as evidence responding to HSI;
  • Used to correct Section 2;
  • Used for required reverification; or
  • Used to complete a new Form I-9 when legally appropriate.

These are not necessarily the same process.

When completing Section 2 to establish both identity and employment authorization, the employee generally may present:

  • One acceptable List A document; or
  • One acceptable List B document and one acceptable List C document.

The employee chooses which acceptable documentation to present.

Reviewing Supplement B for Reverification

If Supplement B was previously completed, review its entries for accuracy and determine whether corrections are necessary.

If the employee’s temporary employment authorization requires reverification, the employee may generally present:

  • An acceptable List A document; or
  • An acceptable List C document.

A List B document establishes identity only and is not required for reverification. The employer should not request a new List B document merely because a driver’s license or other identity document expired.

The HR representative can say:

The company needs to verify your continued employment authorization. You may present an acceptable List A or List C document of your choice. The company is not requesting any particular document.

Reverification is not required for every expiring document. U.S. citizens and noncitizen nationals are not reverified. Lawful permanent residents are generally not reverified merely because a Permanent Resident Card expires. Certain temporary documents may also benefit from automatic extensions.

Concluding the Discrepancy Meeting

The HR representative can say:

Thank you for reviewing the notice and your Form I-9. The company’s response to HSI is due on [date]. Please provide any additional information or documentation you want the company to include by [internal deadline].

We are using an earlier internal deadline so the company and counsel have time to review and organize the response. If you believe you need more time, please tell us as soon as possible. The company cannot promise that HSI will extend its deadline.

No final conclusion should be drawn from this meeting alone. The company will review the information provided and respond to HSI as required.

Employee Meeting for a Notice of Suspect Documents

A Notice of Suspect Documents is more serious because HSI has determined that the documentation reviewed does not relate to the employee or is otherwise not valid for employment.

The employer should communicate that finding accurately without accusing the employee of fraud or declaring that the employee is unauthorized.

Suggested introductory script

Thank you for meeting with us. As an employer, the company is legally required to complete and maintain Form I-9 to verify the identity and employment authorization of employees hired in the United States.

ICE Homeland Security Investigations is reviewing the company’s Forms I-9. During that inspection, HSI issued a Notice of Suspect Documents concerning documentation associated with your Form I-9.

According to the notice, HSI believes that the documentation it reviewed does not relate to you or is otherwise not valid for employment. This is HSI’s finding; the company is not independently accusing you of fraud or wrongdoing.

You are being given a copy of the notice and an opportunity to provide information or documentation showing that HSI’s finding is incorrect or that you are currently authorized to work in the United States.

The company is not asking for any particular document. We will explain the deadline and response process.

Reviewing the Documents Listed on Form I-9

The HR representative can say:

According to Section 2 of your Form I-9, the following document or documents were presented when the form was completed: [identify the documents].

Please review the form and tell us whether this information accurately reflects the documents you presented. You may also provide any explanation or additional information you want the company to submit to HSI.

The employer should not ask the employee to admit that a document was false, borrowed, purchased, or issued to another person.

If the employee volunteers information, document the statement accurately without arguing, threatening, or promising a particular result.

If the Employee Says the Original Documents Are Valid

The employee’s statement does not automatically conclude the process because HSI has already questioned the documentation.

The HR representative can say:

We will document that you believe the documents are valid and pertain to you. You may provide any additional information or documentation that you would like included in the company’s response to HSI.

Counsel should determine what information to submit and whether clarification should be requested from HSI.

If the Employee Says the Information Is Incorrect

The HR representative should not turn the meeting into an accusatory interrogation.

The representative can say:

Thank you for letting us know. You may identify any information that needs to be corrected and provide information or documentation that you want the company to consider in responding to HSI. The company is not requesting a particular document.

Counsel should determine:

  • Whether Form I-9 can be corrected;
  • Whether a new Form I-9 should be completed;
  • How the original form and correction should be retained;
  • What should be disclosed to HSI;
  • Whether the employee currently has employment authorization; and
  • Whether continued employment is permissible.

Correcting Form I-9 does not erase the original error or necessarily resolve a knowing-employment concern.

If the Employee Provides New Documentation

If complete Form I-9 verification is legally required, the employee generally may present:

  • One List A document; or
  • One List B document together with one List C document.

If only reverification is required, an acceptable List A or List C document is generally sufficient.

The employer representative should:

  • Examine the documentation using a legally permitted procedure;
  • Determine whether it reasonably appears genuine and relates to the employee;
  • Record it in the appropriate portion of Form I-9 when required;
  • Initial and date corrections;
  • Retain copies when required by company policy, E-Verify rules, or HSI instructions; and
  • Include relevant information in the response.

Do not accept a document that does not reasonably appear genuine or related to the employee merely because the deadline is approaching.

Concluding the Suspect-Documents Meeting

The HR representative can say:

The company’s response to HSI is due on [date]. Please provide any information or documentation you would like the company to include by [internal deadline].

The company will review what you provide and respond to HSI. We cannot promise what conclusion HSI will reach. The company must also determine whether continued employment is legally permissible based on the information available.

If you want advice regarding your personal immigration situation, you may consult an attorney of your choice. The company’s attorney represents the company unless that attorney expressly agrees otherwise.

Frequently Asked Employee Questions

“Is ICE involved?”

Yes. ICE Homeland Security Investigations issued the notice during its review of the company’s Forms I-9. We are providing you with the notice and an opportunity to respond.

“Does this mean I am being fired?”

No final employment decision is being communicated during this meeting. You are receiving the notice and an opportunity to respond. The company will evaluate the available information and its legal obligations after reviewing your response.

This response should be modified if the company already possesses reliable information requiring immediate action.

“What document do you want me to bring?”

The company is not requesting a specific document. You may choose which acceptable documentation or other responsive information to provide. We can provide the applicable Form I-9 Lists of Acceptable Documents, but we cannot select a document for you.

“Can I bring a Social Security card?”

You may choose which acceptable documentation to present. The company cannot advise you to present a particular document. Any document must satisfy the requirements applicable to the correction or reverification being completed.

An unrestricted Social Security card may qualify as a List C document. A card marked with employment restrictions may not establish employment authorization for Form I-9 purposes.

“Can I keep working?”

The company is reviewing the notice and its legal obligations. We cannot promise an outcome during this meeting. We will inform you promptly of any employment decision.

“Why was I selected?”

HSI identified your Form I-9 during its inspection. The company did not independently select you for this review.

“Do I need a lawyer?”

The company cannot provide legal advice about your personal situation. You may consult an attorney of your choice. The company’s attorney represents the company unless that attorney expressly agrees to represent you.

“Will the company send my documents to ICE?”

The company is required to respond to HSI. Information or documentation you provide for that response may be submitted to HSI. We will handle the information as confidentially as reasonably possible, but we cannot promise that it will remain only within the company.

Employee Acknowledgment of Receipt

The employer may use the following acknowledgment:

I acknowledge that on [date], I received a copy of the [Notice of Discrepancies/Notice of Suspect Documents] relating to my Form I-9. The company explained that its response to HSI is due on [date] and requested that I provide any response by [internal deadline].

I understand that I may provide information or documentation addressing the notice and that the company is not requesting any particular document.

My signature acknowledges receipt only. It does not mean that I agree with HSI’s finding or waive any rights.

Employee name:
Employee signature:
Date:
Company representative:
Interpreter, if applicable:

If the employee declines to sign, the company representative should document the date, time, delivery method, and witnesses. The employee should still receive a copy.

Employee Response Worksheet

Prepare a worksheet for each affected employee containing:

  • Employee’s full name;
  • Employee identification or payroll number;
  • Work location and position;
  • Type of ICE notice;
  • Date and method of delivery;
  • Company representatives present;
  • Interpreter used, if any;
  • Employee’s response concerning Section 1;
  • Employee’s response concerning Section 2;
  • Employee’s response concerning Supplement B;
  • Corrections made;
  • Additional information or documentation provided;
  • Date materials were received;
  • Copies attached;
  • Current employment status;
  • Follow-up requested from the employee;
  • Follow-up requested from HSI; and
  • Notes concerning final disposition.

The worksheet, Form I-9 copy, acknowledgment, meeting notes, and supporting documents can be organized into a separate employee response packet.

Evaluating the Employee’s Response

The employer and counsel should evaluate:

  • Whether the employee corrected an identifiable error;
  • Whether the employee explained the discrepancy;
  • Whether documentation reasonably appears genuine and relates to the employee;
  • Whether the documentation establishes current authorization;
  • Whether an automatic extension applies;
  • Whether a valid receipt rule applies;
  • Whether new information creates identity, payroll, tax, or fraud concerns;
  • Whether HSI withdrew or clarified its finding; and
  • Whether employment may lawfully continue while HSI reviews the response.

The employer is not expected to be a forensic document examiner or independently adjudicate immigration status. It generally must accept documentation that reasonably appears genuine, relates to the person presenting it, and satisfies the applicable Form I-9 requirements.

The employer should not ignore obvious inconsistencies or accept documents that do not reasonably appear genuine or related to the employee.

Possible Employee Responses

Employee response Recommended employer action
Employee identifies a clerical error Correct the appropriate section without concealing the original entry; initial and date the correction
Employee confirms the information and provides an explanation Document and submit the explanation with supporting information
Employee presents different acceptable documentation Review it under applicable Form I-9 rules and submit relevant information to HSI
Employee provides evidence of an automatic extension Confirm the applicable rule and update Form I-9 as required
Employee provides a permissible receipt Confirm the receipt rule and calendar the replacement-document deadline
Employee needs more time Consider requesting an extension from HSI
Employee says the questioned document belongs to them Document the statement and submit corroborating information; do not treat the statement alone as resolving HSI’s finding
Employee admits information was incorrect Stop informal questioning and consult counsel
Employee provides no response Document the opportunity provided and evaluate continued employment
Employee cannot establish current authorization Consult counsel regarding required employment action
Employee is no longer employed Report the termination date and provide requested records
Employee cannot be located Document reasonable notification efforts and report the employee’s status

Automatic Extensions and Receipt Rules

A document’s expiration date does not always mean employment authorization expired. Certain categories may receive automatic extensions by statute, regulation, Federal Register notice, or other government action.

Form I-9 rules also recognize limited receipts in place of original documentation.

The employer should not assume that:

  • Every expired document is invalid;
  • Every pending immigration application extends employment authorization;
  • Every receipt is acceptable;
  • A filing receipt proves continuing authorization; or
  • Every employee with an expired Employment Authorization Document requires a new card immediately.

These rules are technical and can change. Confirm the rule applicable to the employee’s category and documentation before taking adverse action.

What If New Documents Contain Different Identity Information?

A new document may contain a different name, date of birth, Social Security number, or other biographical information.

Do not simply overwrite the original Form I-9. A significant identity change may affect:

  • Form I-9 compliance;
  • Payroll and tax reporting;
  • Benefits;
  • Background checks;
  • Professional licenses;
  • Security credentials;
  • Customer or government contracts;
  • Prior employment records; and
  • Potential identity-theft or document-fraud issues.

Gather the information without conducting an accusatory interrogation and refer the matter to counsel. The employee may have a legitimate explanation, including a legal name change or corrected government record.

What If the Employee Admits the Original Document Was Not Theirs?

An admission that an employee used another person’s document or identity creates concerns beyond an ordinary Form I-9 correction.

The employer should:

  • End informal questioning;
  • Document what the employee voluntarily stated;
  • Avoid demanding a written confession;
  • Preserve the original Form I-9 and related records;
  • Restrict internal disclosure;
  • Consult immigration compliance and, when appropriate, criminal counsel;
  • Evaluate continued employment;
  • Consider payroll, tax, benefits, and identity issues; and
  • Determine what must be disclosed to HSI.

Valid documentation presented now does not necessarily erase historical Form I-9, identity, or employer-knowledge concerns.

What If the Employee Says HSI Is Wrong?

Allow the employee to explain and provide supporting information.

Possible explanations include:

  • HSI reviewed an outdated document;
  • The employee changed names;
  • A government database contains an error;
  • The employer recorded the document number incorrectly;
  • An automatic extension applies;
  • The documentation belongs to the employee despite the mismatch;
  • The employee changed immigration status; or
  • The employer submitted the wrong Form I-9.

Include relevant explanations and evidence in the response. Counsel may ask HSI to reconsider or clarify its finding.

Can the Employee Continue Working?

There is no single answer applicable to every case.

Relevant considerations include:

  • The type of notice;
  • HSI’s instructions;
  • The documentation provided;
  • Whether an automatic extension applies;
  • Independent information available to the employer;
  • Whether HSI issued a further determination;
  • The time needed to resolve the issue;
  • Consistently applied company policies;
  • Discrimination and retaliation laws; and
  • Applicable employment agreements, leave laws, or collective-bargaining requirements.

A Notice of Discrepancies ordinarily means HSI could not determine eligibility from the records reviewed. It should not automatically be treated as proof of unauthorized status.

A Notice of Suspect Documents presents greater continued-employment risk because HSI has determined that the reviewed documentation does not relate to the employee or is otherwise invalid for employment.

Decisions to continue employment, place an employee on leave, suspend employment, or terminate should be made after an individualized review with counsel.

Does Placing the Employee on Leave Resolve the Problem?

Not necessarily.

Unpaid leave may constitute an adverse employment action and create discrimination, retaliation, wage, leave, or contractual concerns. Continuing compensation or work may also create risk if the employer has knowledge that the employee is unauthorized.

Leave should not be treated as an automatic solution.

When May Termination Be Necessary?

An employer generally may not knowingly continue employing an individual who lacks authorization to work. The applicable prohibition appears in 8 U.S.C. § 1324a.

Termination may become necessary when:

  • The employee admits lacking employment authorization;
  • The employee cannot resolve HSI’s finding;
  • HSI maintains that the employee is unauthorized after reviewing the response;
  • The employee provides no response;
  • Presented documentation does not reasonably appear genuine or related to the employee;
  • Temporary authorization expired without an applicable extension; or
  • Other reliable information establishes that continued employment is unlawful.

Document that the decision is based on inability to establish or maintain employment authorization—not nationality, citizenship, accent, appearance, or country of origin.

Termination Should Not Be Premature

Avoid terminating an employee solely because:

  • The employee appears on a Notice of Discrepancies;
  • HSI requested additional information;
  • A document contains a correctable error;
  • A document may be automatically extended;
  • The employee requests a reasonable opportunity to obtain records;
  • The employee contacts an attorney or government agency;
  • The employee declines to present a specific document selected by the employer; or
  • The employer assumes that a non-U.S. citizen must regularly prove authorization.

Documenting a Termination

The employer’s records should identify:

  • The ICE notice;
  • When it was provided to the employee;
  • The response deadline;
  • Meetings conducted;
  • Information and documentation provided;
  • Follow-up efforts;
  • Information received from HSI;
  • The legal and factual basis for the decision;
  • The termination date; and
  • Final wage, benefits, and property arrangements.

Avoid unsupported labels such as “fraud,” “identity theft,” or “illegal alien.”

A neutral explanation may state:

Employment ended because the employee was unable to establish continuing authorization to work in the United States after receiving notice and an opportunity to provide responsive information or documentation.

This language should be tailored to the facts.

Preparing the Response to HSI

A complete submission may contain:

Cover letter

Identify:

  • The employer;
  • The case or inspection number;
  • The notice being answered;
  • The date received;
  • The response deadline;
  • The number of employees addressed;
  • Unresolved issues;
  • Extension or clarification requests; and
  • Counsel’s contact information.

Response index

List each employee and the corresponding packet or exhibit number. Use secure identifiers where appropriate.

Separate employee packets

Each packet may include:

  • The applicable ICE notice;
  • Proof of delivery;
  • The Form I-9 reviewed by HSI;
  • A response worksheet;
  • Properly documented corrections;
  • The employee’s explanation;
  • Supporting documentation;
  • Current employment status; and
  • Any request for HSI review.

Employer summary

Employee Notice Notice delivered Response received Documentation provided Employment status HSI review requested
Employee 001 Discrepancy Yes Yes Yes Employed Yes
Employee 002 Suspect Documents Yes No No Under review Yes
Employee 003 Discrepancy Attempted No No Former employee No

Proof of submission

Retain:

  • The complete response;
  • Delivery confirmation;
  • Upload confirmation;
  • HSI’s acknowledgment;
  • Email correspondence; and
  • Notes regarding telephone or in-person communications.

Communicating With HSI

Significant communications should be confirmed in writing.

The employer or counsel may ask HSI to clarify:

  • Which document is considered suspect;
  • The discrepancy HSI could not resolve;
  • Whether specific supporting evidence is requested;
  • Whether an employee’s response resolves the concern;
  • Whether additional time will be granted;
  • Whether HSI expects an employment action;
  • Whether HSI will provide a revised finding; and
  • Whether additional employees or records are under review.

The employer should respond truthfully but avoid speculative admissions about what managers knew or why an error occurred before completing an appropriate review.

What Happens After Submission?

HSI may:

  • Accept the information;
  • Remove or revise a finding;
  • Request additional documentation;
  • Maintain its determination;
  • Ask the employer to confirm an employment action;
  • Expand the inspection;
  • Issue additional notices;
  • Issue a Warning Notice;
  • Issue a Notice of Intent to Fine; or
  • Refer the matter for further investigation.

Request written confirmation when HSI determines that an employee resolved the concern. Do not assume that silence constitutes approval.

Staffing Companies and Subcontractors

Using a staffing company or subcontractor does not eliminate all immigration-compliance risk.

The client company ordinarily does not complete Forms I-9 for workers genuinely employed by the staffing company. However, the parties’ labels do not always determine the actual employment relationship.

Federal law also provides that a person or entity using a contract or subcontract to obtain an individual’s labor while knowing the individual is unauthorized may be treated as having hired that person in violation of the law.

If a notice identifies contract workers, determine:

  • Which company hired and pays them;
  • Which company completed and retains the Forms I-9;
  • Who controls hiring, firing, scheduling, and supervision;
  • Whether the workers are correctly classified;
  • Which company received the notice;
  • Who will communicate with affected workers;
  • Who will submit the response;
  • What the contract requires; and
  • Whether either company possesses relevant information.

The parties should coordinate through counsel without issuing conflicting instructions or duplicate document demands.

Actual and Constructive Knowledge

Actual knowledge

Actual knowledge may arise when:

  • The employee admits lacking authorization;
  • HSI confirms that an employee is unauthorized;
  • The employer receives reliable government information establishing the lack of authorization;
  • The employer knows temporary authorization expired without an extension; or
  • Management knowingly participates in the use of false identity or employment documents.

Constructive knowledge

Constructive knowledge involves information from which knowledge may fairly be inferred through reasonable care.

Current regulations state that constructive knowledge may include circumstances in which an employer:

  • Fails to complete or improperly completes Form I-9;
  • Has information indicating that an individual is not authorized to work; or
  • Acts with reckless and wanton disregard for the consequences of allowing another person to introduce unauthorized workers into its workforce.

The definition appears at 8 C.F.R. § 274a.1(l).

Constructive knowledge is fact-specific. Employers should not treat every rumor, mismatch, or document error as conclusive. They also should not deliberately avoid investigating credible information.

Does a Social Security Mismatch Establish Constructive Knowledge?

Not by itself.

A mismatch can result from:

  • A typographical error;
  • An unreported name change;
  • Inaccurate employer records;
  • Multiple or hyphenated surnames;
  • A government database error;
  • A citizenship-status update;
  • Identity theft; or
  • Fraud.

The Department of Justice advises employers not to automatically conclude that a worker is unauthorized based solely on a mismatch or use the mismatch alone as the reason for adverse action. DOJ: IER Frequently Asked Questions

A Social Security mismatch is different from a Notice of Suspect Documents, which reflects a specific HSI determination during an inspection.

Can the Notice Lead to a Raid or Criminal Investigation?

Potentially. The notice alone does not prove that the employer or employee committed a crime.

Escalation risk may increase when the government believes it has evidence of:

  • Knowing employment of multiple unauthorized workers;
  • Continued employment after government notice;
  • A pattern or practice of violations;
  • Identity theft;
  • Fraudulent document production or distribution;
  • False statements;
  • Alteration or destruction of Forms I-9;
  • Concealment of employees;
  • Harboring or transportation;
  • Tax or payroll violations;
  • Labor exploitation or trafficking;
  • Coordination between management and labor providers; or
  • Obstruction.

Employers should preserve records and consider involving white-collar criminal counsel when the facts extend beyond ordinary administrative compliance.

See our separate guide to ICE worksite raids and employer preparedness.

Common Employer Mistakes

Employers should avoid:

  • Waiting until the deadline to contact counsel;
  • Treating a discrepancy as proof of unauthorized status;
  • Treating suspect documents as an ordinary clerical issue;
  • Concealing ICE’s involvement;
  • Conducting group employee meetings;
  • Demanding a particular document;
  • Requesting List B documentation for reverification;
  • Assuming every expired document is invalid;
  • Treating a verbal assurance as resolving HSI’s finding;
  • Accepting new identity information without further review;
  • Backdating or replacing the original Form I-9;
  • Terminating every listed employee immediately;
  • Continuing employment indefinitely without follow-up;
  • Making unsupported admissions to HSI;
  • Failing to request additional time before the deadline;
  • Failing to secure sensitive employee information; and
  • Assuming a staffing contract eliminates potential liability.

Frequently Asked Questions

Does a Notice of Suspect Documents mean the employee is unauthorized?

It means HSI determined that the reviewed documentation does not relate to the employee or is otherwise invalid for employment. The employee and employer ordinarily receive an opportunity to provide information addressing the finding.

If the matter remains unresolved, continued employment may create significant risk.

Does a Notice of Discrepancies require termination?

Not automatically. It means HSI could not determine eligibility from the records reviewed. The employee should receive the notice and an opportunity to clarify the record.

Must the employer provide the notice to the employee?

The ICE inspection process contemplates that affected employees receive the notice and an opportunity to respond. Document delivery or reasonable efforts to provide it.

Can the employer require a new Form I-9?

Not automatically. Determine whether to correct the existing form, complete Supplement B, prepare a new form when appropriate, or submit information to HSI without changing the form.

Preserve the original record.

Can the employer specify which document the employee must provide?

Generally, no. Explain the applicable requirements and allow the employee to choose acceptable documentation.

Can the employer request both a passport and Social Security card?

An employer should not request unnecessary additional documents. A valid List A document generally establishes both identity and employment authorization.

How long should employees receive to respond?

The process must fit within HSI’s deadline. The employer may establish an earlier internal deadline. If more time is needed, request an extension from HSI before the deadline.

Can the employee continue working?

It depends on the notice, available information, employee response, HSI’s instructions, and whether the employer has actual or constructive knowledge that the employee is unauthorized.

What if the employee refuses to respond?

Document that the notice and response opportunity were provided. Counsel should evaluate whether the available information permits continued employment.

What if the employee is no longer employed?

Report the termination date and provide requested records. Former-employee status does not necessarily eliminate the employer’s obligation to respond.

Can the employer ask HSI to reconsider?

Yes. Submit corrective information or supporting documentation and request written confirmation that HSI has resolved or withdrawn the finding.

Does correcting Form I-9 eliminate possible penalties?

Not necessarily. A proper correction may improve compliance but does not erase the historical violation or guarantee that ICE will not assess a penalty.

Is a Social Security mismatch the same as a Notice of Suspect Documents?

No. A mismatch does not, by itself, establish unauthorized status. A Notice of Suspect Documents reflects an HSI determination made during an ICE inspection.

Does using a staffing agency eliminate the company’s risk?

No. Risk may remain if the company is an employer, jointly controls the workforce, or knowingly obtains unauthorized labor through a contract or subcontract.

Are communications with company counsel privileged?

Qualifying confidential legal communications may be privileged. Underlying Forms I-9, employee statements, personnel records, and preexisting business documents do not become privileged merely because they are provided to counsel.

Preparing Before ICE Issues a Notice

Employers can prepare by:

  • Conducting periodic internal Form I-9 audits;
  • Maintaining a written Form I-9 policy;
  • Providing Form I-9 training for HR and hiring managers;
  • Centralizing responsibility for government notices;
  • Maintaining current employee contact information;
  • Separating Forms I-9 from ordinary personnel files;
  • Establishing secure document-transmission procedures;
  • Maintaining a consistent document-copying policy;
  • Monitoring reverification deadlines;
  • Reviewing automatic-extension rules before adverse action;
  • Preparing employee-notification procedures and worksheets;
  • Reviewing staffing-company and subcontractor agreements;
  • Identifying immigration compliance and criminal counsel; and
  • Preparing for possible ICE Form I-9 inspections.

Conclusion

A Notice of Suspect Documents or Notice of Discrepancies requires more than asking an employee for another identification document.

The employer must understand HSI’s finding, notify the employee, provide a meaningful opportunity to respond, avoid discriminatory document demands, evaluate continued employment, preserve the historical Form I-9, and submit an accurate response by the government’s deadline.

A controlled, employee-by-employee process can help the employer respond without creating unnecessary knowing-employment, discrimination, privacy, or obstruction risks.

Please do not hesitate to contact Matthew Myers or Myers Immigration Law with questions concerning a Notice of Suspect Documents, Notice of Discrepancies, Form I-9 inspection, or related worksite investigation at (210) 640-7424 or info@myersimmigration.com.

This article provides general information and does not constitute legal advice or create an attorney-client relationship.