A company’s I-9 file, which often goes unnoticed by all but a few HR professionals, can carry significant risk. Form I-9 files often serve as landmines for fines, penalties, and sanctions. Companies can mitigate these risks by conducting periodic Form I-9 audits.
This week, the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) issued joint guidance for employers on conducting internal Form I-9 audits in compliance with the Immigration and Nationality Act (INA).
Here are some important points from the guidance:
- Employers may choose to review all Forms I-9 or a sample of Forms I-9 selected based on neutral and non-discriminatory criteria. If a subset of Forms I-9 is audited, avoid choosing the subset based on employees’ citizenship status or national origin, as this is may constitute unlawful discrimination.
- Use proper procedures set forth in the guidance for correcting errors in Forms I-9.
- If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible. Never backdate the form, but do clearly state the actual date employment began in the certification portion of Section 2. The employer should attach a signed and dated explanation of the corrective action taken.
- For an employer that has photocopied Form I-9 supporting documents (such as drivers’ licenses and permanent resident cards), it may not be able to definitively determine during the audit the genuineness of this photocopied documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear.
- E-Verify generally cannot be used for existing employees. However, if an employer learns during an audit that it inadvertently failed to create a case in E-Verify for an employee, the employer should immediately create a case for the employee to bring itself into compliance.
- An employer may delegate a third party to conduct an internal Form I-9 audit. However, an employer that relies on third party auditors is not immune from penalties imposed for violating the employer sanctions provision or the anti-discrimination provision of the INA. An employer remains liable for any violations committed by the third party.
The joint guidance makes clear that performing an internal audit does not insulate companies from penalties for violating the INA. And correcting an I-9 the wrong way or making errors when doing so defeats the purpose of the audit. However, a well-planned, efficient Form I-9 audit can expose and correct violations lurking under the radar. If performed correctly, it can avoid future penalties.
McGuireWoods’ Immigration Compliance and Worksite Enforcement attorneys regularly counsel clients on Form I-9 audits and provide in-house training to equip companies with the knowledge and tools necessary to conduct internal Form I-9 audits.