Now is the time for Employers to conduct internal I-9 audits to ensure compliance with U.S. immigration laws.
During President-elect Trump's first term, we saw a concerted focus on enforcement of I-9 compliance, including significant increases in Immigration and Customs Enforcement (ICE) I-9 audits. If an employer receives notification of an ICE, Department of Justice (DOJ), or Department of Labor (DOL) I-9 audit, they will be given three business days to respond. Voluntary internal I-9 audits help employers identify and correct errors prior to this tight response time. Because I-9 violations can result in civil fines and/or criminal penalties, debarment from government contracts, court orders requiring back pay to a discriminated individual, and/or court orders requiring the employer to hire the discriminated individual, mitigating I-9 errors is critical.
Fortunately, the Department of Homeland Security provides helpful guidance for employers on how to best conduct internal I-9 audits.
Guidance from ICEand guidance from the United States Citizenship and Immigration Services (USCIS) are valuable resources.
Additionally, USCIS' I-9 Central and the corresponding M-274 Handbook for Employers are comprehensive, with detailed instructions on how to comply with I-9 regulations. E-Verify is another helpful tool employers can use in conjunction with I-9 compliance. However, E-Verify is not a substitute for I-9 compliance.
The most common errors we see in assisting with I-9 compliance include:
- Failing to re-verify an employee's U.S. employment authorization when a document used at the time of hire has expired;
- Discriminatory practices in auditing a selection of the employer's I-9's;
- Accepting an employee's Social Security Card under the List C of acceptable documents when it has a notation that reads: Valid for Work Only with DHS Authorization;
- Failing to properly re-verify an employee's U.S. employment authorization based on a pending extension application timely filed with USCIS;
- Requiring employees to complete new I-9 forms when errors are identified on the I-9 completed at the time of hire;
- Failing to inspect the List A document, or List B and List C documents in person within three business days of hire if the employer does not qualify for the virtual inspection exception; and
- Completing I-9's on an outdated version of the form.
We are available to assist with internal I-9 audits. If employers receive notification of a government audit, we recommend contacting immigration counsel immediately.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.