The U.S. Immigration and Customs Enforcement (ICE) Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued guidance to help employers conduct internal I-9 audits in compliance with the employer sanctions and anti-discrimination provisions of the Immigration and Nationality Act (INA).

The ICE guidance addresses key issues for employers to consider in structuring and implementing an internal I-9 audit:

• Appropriate purpose and scope of the I-9 audit.
• Avoiding I-9 audits that are discriminatory or retaliatory.
• Employer communications to employees before and during an I-9 audit.
• Procedures for correcting errors or omissions on a Form I-9.
• Processes for determining whether Section 2 documents meet the Form I-9 requirements.

The new ICE guidelines tell employers what they should do in the following internal I-9 audit situations:

• Discovery that no Form I-9 was completed or that the Form I-9 is otherwise deficient.
• Photocopies of Form I-9 documents do not appear to be genuine.
• Employer failed to create individual E-Verify case for employee.
• Employer terminated employee upon receipt of a tentative non-confirmation (TNC)
• Employee admits that he or she is not work-authorized or had worked with a false identity or fraudulent documents.
• Employee fails to present acceptable documents within a reasonable amount of time.
• An employee offers a “tip” that another employee is not work-authorized.

Finally, the ICE guidance clarifies the government’s position relating to certain questions in connection with internal I-9 audit practices:

• Whether the “90-day period” set forth by the U.S. Department of Homeland Security Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (Aug. 15, 2007) (which was rescinded) applies to an employer’s internal I-9 audit procedures.
• Whether employers should follow the ICE 10-day period set by ICE policy relating to a Notice of Suspect Documents letter.
• Whether employers should use the Social Security Number Verification Service (SSNVS) during an I-9 internal audit.

In short, employers should review the new ICE guidance and incorporate the guidelines into the employer’s internal I-9 audit policies. The ICE Form I-9 audit guidance document can be found here.

While not required by law, many employers have adopted “best practice” policies, which include a periodic internal audit of its Forms I-9 to ensure ongoing compliance with employer sanctions and anti-discrimination provisions of the INA. While the ICE guidance will not insulate an employer from potential liability under either provision, adopting the I-9 audit practices outlined in the guidance should reduce the risk of employer liability related to the internal Form I-9 audit process.