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Feds Speak Up on Form I-9 Internal Audits

And they expect you to listen. The Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) recently issued a joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits. The guidance provides employers with information on the scope and purpose of I-9 internal audits, considerations before conducting them, details on how to correct errors including deficiencies related to E-Verify queries, and guidance pertaining to anti-discrimination.

While the full guidance document can be accessed at the U.S. Immigrations and Customs Enforcement website, here are a few highlights:

  • An employer may choose to review each Form I-9 or sample Form I-9s selected based on neutral and non-discriminatory criteria.
  • Penalties for violations of the employer sanctions provision, and the anti-discrimination provision of the INA, may be imposed even if an internal audit has been performed.
  • An employer should consider the process it will have for fielding questions or concerns about the audit and how it will inform the employees of that process, including documenting its communications with employees.
  • Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees 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.
  • 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 and provide clear instructions on how to seek additional information.
  • If an employer discovers an error or omission in Section 1 of an employee’s Form I-9, the employer should ask the employee to correct the error. Employees needing assistance to correct or enter omitted information in Section 1 can have a preparer and/or translator help with the correction or omitted information.
  • An employer may only correct errors made in Section 2 or Section 3 of the Form I-9 but should not conceal any changes made on the Form I-9. For example, erasing text or using correction fluid. Nor should the employer backdate the Form 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.
  • An employer is cautioned against obtaining new Forms I-9 from its existing employees (absent acquisition or merger) without regard to whether a particular Form I-9 is deficient or without reason to believe that systematic deficiencies in the employer’s employment eligibility verification process call the integrity of all previously completed Forms I-9 into question.
  • An employer may delegate a third party to conduct an internal Form I-9 audit. However, the employer remains liable for any violations committed by the third party.

While you may find this guidance helpful, further simplification may be on its way. The U.S. Citizenship and Immigration Services (USCIS) has expressed interest in creating a new “smart” version of the Form I-9 to reduce user error and make the form easier to complete. New drop-down menus, field checks and error messages will be added to ensure accurate data entry during the employment verification process. In the meantime, however, the current version should be used with regular audits to ensure compliance.

What are you biggest concerns about I-9? Do you run internal audits and, if not, will this guidance prompt you to run them in the future? Tell us! We’d love to hear from you.