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I-9 E-Verify Immigration Compliance

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  1. How to Get Ready for an ICE Audit? (part 2)

    By: Bruce Buchanan, Sebelist Buchanan Law
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    As previously stated, Tom Homan, Acting Director of Immigration and Customs Enforcement (ICE), announced an increase of I-9 Inspections/Audits "by four to five times." What can employers do to decrease their vulnerability to significant penalties if one is audited? There are two things to do which go hand in hand – implement an immigration compliance policy and conduct an internal I-9 audit. On November 13, 2017, I discussed implementing an immigration compliance policy This blog will focus on conducting an internal I-9 audit.

    An internal I-9 audit (also called a self-audit) is the best prevention tool to avoid costly penalties if ICE conducts an inspection of your I-9 forms pursuant to a Notice of Inspection/subpoena. An internal I-9 audit is not required by law but is highly recommended. However, unless such an audit is conducted by, or under the close supervision of, an immigration compliance attorney, an employer may do more damage than good. A classic example of doing more damage is finding errors on the I-9 forms, completing new I-9 forms, and destroying the existing I-9 forms.

    An employer should conduct internal I-9 audits yearly or less frequently, depending on size of company and number of employees hired each year. An employer may choose to audit the I-9 forms of all current employees, all current employees and former employees for the last two years, or a sample of I-9 forms selected based on neutral and non-discriminatory criteria. If a subset of I-9 forms is audited, the employer should consider carefully how it chooses I-9 forms to be audited to avoid discriminatory or retaliatory audits. Thus, one should not audit only those employees with permanent resident cards or foreign-sounding last names.

    If errors are found on I-9 forms, they should be corrected by the employee for Section 1 errors and the employer for Sections 2 and 3 errors. For corrections in Section 2, it should be the employer’s representative who originally reviewed documents and signed the certification. If that person is no longer employed, it is usually best to complete a new I-9 form. However, if it is a minor error, such as failure to include an expiration date in List A or List B where the document is attached to the I-9 form or the employer’s address is missing, another HR representative can make the correction.

    If an I-9 form is missing data, such as the title of a document or expiration date, one may add that information in a different color pen, initial, and date the correction. If information is put in the wrong list, i.e., Social Security card in List B and driver’s license in List C, draw arrow in different color pen to correct list, and initial, and date the correction.

    To correct multiple errors on an I-9 form, a new I-9 form may be completed and attached to the old form. Or if entire sections of the I-9 form were left blank, one may complete just that section and attach it to the old I-9 form. In making corrections or attaching a new I-9 form, always include a note concerning the reason changes were made to the existing I-9 form or a new I-9 form was completed. It is sufficient to state the errors were located in an internal I-9 audit.

    Other helpful ideas to implement in an internal I-9 audit are:
    1. Establish a re-verification tickler system to ensure I-9 forms are checked in a timely manner;
    2. Establish a backup system to ensure timely compliance with I-9 form rules when a human resource professional is out of the office;
    3. Segregate I-9 forms from other personnel records;
    4. Consider using an electronic Form I-9 product to automate the collection of information, to reduce errors, speed up the production of information in the case of a government audit, and ensure timely re-verification of I-9 forms.

    For more information on how to conduct an internal I-9 audit in advance of an ICE inspection, I invite you to read my new book, The I-9 and E-Verify Handbook, which is available at http://www.amazon.com/dp/0997083379.
  2. BALCA Reverses Decision of Certifying Officer

    By Bruce Buchanan, Sebelist Buchanan Law PLLC

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    BALCA reversed a Certifying Officer’s (CO) denial of labor certification after it was persuaded that an employer’s failure to provide an unaltered copy of requested Form 9089 in response to the audit request was due to an electronic processing system and printing error that cut off language in the form. (Spirent Communications, 2013-PER-02757).

    Spirent Communications, Inc. filed Form 9089 sponsoring a foreign national for permanent employment. The application was later chosen for audit requiring the employer to provide a copy of the submitted Form 9089. After noticing a sentence at the end of both paragraph H. 11 and H. 14 of the form were unintendedly cut off by the electronic processing system, Spirent provided a corrected form to include each entire sentence. The corrected language matched what was included in paragraph K-9 of Form 9089 and the Prevailing Wage Determination.

    The CO denied the PERM application citing that the corrected cut off sentence violated the requirement of an unaltered copy of Form 9089. Spirent asked for reconsideration stating it had no intent to deceive and the dangling sentence had no material effect on recruitment. Spirent additionally submitted an affidavit explaining the discrepancy between printed and electronic documents. The CO upon reconsideration upheld its denial - stating Spirent failed to submit an unaltered copy of the form.

    On appeal, BALCA found that correcting an obvious error was not a substantial failure to respond. Spirent’s notarized affidavit and attorney both explaining the mistake as well as the language in question being represented in full in paragraph K-9 and the Prevailing Wage Determination buttressed its appeal. Thus, BALCA remanded the matter for certification.

    Although the company ultimately prevailed, this case illustrates the importance of checking system printouts before submission and maintaining an audit file.
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