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I-9 E-Verify Immigration Compliance

ICE and OSC’s Guidance on Internal I-9 Audits

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By Bruce Buchanan, Siskind Susser

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As mentioned in a blog posting last week, the Office Special Counsel for Immigration-related Unfair Employment Practices (OSC) and the Immigration and Customs Enforcement (ICE) have just issued a six-page joint Guidance for Employers Conducting Internal I-9 form Audits in a question and answer format. According to OSC and ICE, theguidance is intended to help employers conduct internal audits without violating the employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act (INA).

Conducting an Internal I-9 Audit

Internal I-9 audits (also called self-audits) are not required by law but can be extremely helpful to employers. However, they do not offer immunity if ICE conducts an ICE inspection.

If an employer chooses to conduct an internal I-9 audit, OSC/ICE stress that it cannot be conducted in a discriminatory, due to employees’ citizenship status or national origin, or retaliatory manner. Thus, an employer may choose to review all I-9 forms 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.

The OSC/ICE’s guidance cautions employers against obtaining new I-9 forms from its existing employees, absent acquisition or merger, without regard to whether a particular I-9 form is defective or without reason to believe there are numerous deficiencies in the previously completed I-9 forms. Without sufficient justification, OSC/ICE cautions requiring an existing employee to complete a new I-9 form may raise discrimination concerns. Even though the guidance does not state so, requiring all employees to complete a new I-9 form is not in and of itself unlawful.


Before conducting an audit, an employer should decide how it will communicate with its employees concerning the reason for the internal I-9 audit, preferably in writing, and what employees can expect from the process. An employer should consider how it will inform the employees of that process and how it will document its communications with employees.


Correcting Errors and/or Omissions on I-9 Forms


The guidance provides detailed information on the procedure for correcting errors or omissions found on an I-9 form, which I won’t discuss in this article. It also discusses what occurs when an I-9 form was never completed or is missing. Specifically, the current version of the I-9 form should be completed as soon as possible. If an original I-9 form exists but Section 1 was never completed, the employee should complete Section 1 as soon as possible. If Section 2 was never completed, the employer should complete Section 2 as soon as possible. In both scenarios, the employer should not backdate the form, which should never be done under any circumstances. Plus, the employer should attach a signed and dated explanation of the corrective action taken.


When an I-9 form does not reflect that the employee provided sufficient documentation upon hire or reverification, an employer should ask the employee to present documentation sufficient to meet the requirements of the current version of the I-9 form. The employer should staple the completed and signed Section 2 or 3 of the current version of the I-9 form to the employee’s previous I-9 form, together with a signed and dated explanation of the corrective action taken.


As explained by the OSC/ICE guidance, an employee’s documentation for Section 2 of the I-9 form is sufficient as long as the documentation was acceptable under the requirements of the I-9 form in effect at the time the I-9 form was completed. (The acceptable documentation has changed over the years.) While an employer may specify that the particular document called into question by the internal audit, it may not be used again for I-9 form purposes, the employer should not request specific documents.


What does an Employer do if Employees Admit Unauthorized to Work?

An important issue that an employer may face in an internal I-9 form audit is what to do if an employee admits that he is not work-authorized or it is otherwise determined that an employee is not work-authorized. The guidance states the employer should provide these employees a reasonable amount of time to address their failure to be able to produce document(s) establishing their work authorization. It states that 90 days given in response to no match letters or 10 days given after an employee is listed in a Notice of Suspect Documents from ICE is not applicable in these situations. However, it does not state what is an acceptable time period; instead, the reasonableness of a timeframe should be determined on a case-by-case basis. But, it does state an employer should not summarily discharge employees without providing a process for resolving the issue.

In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s), the guidance states the law does not require termination of employment. An employer may continue to employ the employee upon completion of a new I-9 form noting the authorizing document(s), and should attach the new I-9 form to the previously completed I-9 form together with a signed and dated explanation. Although not stated, an employer may enforce any honesty policy, if it has been consistently applied in similar situations, by terminating that employee for violating the policy.

The guidance discusses situations where an employer receives a tip that an employee is unauthorized to work. While tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips should not always be presumed to be credible, and if unreliable, such as unsubstantiated, retaliatory, or anonymous tips, the guidance cautions employers against responding to those tips. However, the guidance reiterates an employer violates the INA if it continues to employ an employee with actual or constructive knowledge that the employee is unauthorized to work.


Takeaways


The guidance is an extremely helpful document for employers, who do not have the advice of immigration compliance counsel on I-9 matters. I believe one of the reasons for its publication is to encourage employers to conduct internal I-9 audits.
The guidance is also helpful to immigration attorneys because it puts all of the information in one document even though most of the information is not new to attorneys who practice immigration compliance law. Previously, OSC and ICE officials have spoken about these points at seminars and meetings with the AILA verification Liaison committee. However, it is helpful to have all the information in one document.

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