Mark A Ivener, A Law Corporation

OSC, ICE Issue Joint Guidance for Employers Conducting I-9 Audits

U.S. Immigration and Customs Enforcement (ICE) and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) jointly issued new “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits” on December 17, 2015. The guidance notes that although not required by law, an employer may conduct an internal audit of I-9 forms to ensure ongoing compliance with the employer sanctions provision of the INA. An employer may choose to review all or a sample of I-9 forms selected based on neutral and nondiscriminatory criteria. If a subset of I-9 forms is audited, “the employer should consider carefully how it chooses Forms I-9 to be audited to avoid discriminatory or retaliatory audits, or the perception of discriminatory or retaliatory audits,” the guidance notes. Penalties for violations “may be imposed even if an internal audit has been performed.” The guidance states that internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee for any reason. An employer “should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope or selective nature.”

The guidance recommends a “transparent process” for interacting with employees during any internal audit. This includes informing employees in writing that the employer will conduct an internal audit of I-9 forms, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive. The guidance states that when a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency. The employer should provide the employee with copies of his or her Form I-9, any accompanying documents, and any other documentation showing the alleged deficiency. If the employee is not proficient in English, the employer should communicate in the appropriate language where possible. The employer should also provide clear instructions to employees with questions or concerns related to the internal audit on how to seek additional information from the employer to resolve those questions or concerns.

An employer cannot correct errors or omissions in Section 1 of the I-9 form, only in Sections 2 or 3, the guidance notes. The employer should ask the employee to correct any errors in Section 1. The guidance states that the best way to correct such an error is to have the employee draw a line through the incorrect information, enter the correct or omitted information, and initial and date the corrected or omitted information. A preparer or translator can help by making the correction or helping the employee to make the correction.

The guidance recommends that before conducting an audit, an employer should consider the purpose and scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process. An employer should consider the process it will have for fielding questions or concerns about the audit, how it will inform the employees of that process, how it will document its communications with employees, and how it will ensure consistent standards when addressing any I-9 deficiencies revealed by the audit, the guidance notes.

Among other things, the guidance also notes that an employer is not required to terminate employees who, as a result of the employer’s internal I-9 audit, disclose that they were previously not work-authorized, even though they are currently work-authorized. An employer may continue to employ the employee upon completion of a new I-9 noting the authorizing document(s), and should attach the new I-9 to the previously completed I-9 together with a signed and dated explanation, the guidance states.

The guidance also notes that an employer should not use the Social Security Number Verification Service (SSNVS) during an internal I-9 audit. The Social Security Administration (SSA) will verify Social Security numbers and names solely to ensure that the records of current or former employees are correct for the purpose of completing Internal Revenue Service (IRS) Form W-2 (Wage and Tax Statement). Additionally, any notification about a mismatch makes no statement about an employee’s immigration status. Rather, it simply indicates an error in either the employer’s records or SSA’s records “and should not be used as a basis to take adverse action against an employee. In other words, SSNVS is not intended to be used to verify employment authorization in connection with the Form I-9 process,” the guidance notes.

Additional information, such as how to correct other types of errors and determining whether documentation is acceptable, is included in the guidance for download. For further information about the proper use of SSNVS, see the SSNVS Handbook.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.