U.S. Immigration and Customs Enforcement (ICE) intends to increase its investigation efforts during 2016 to ensure employers have met their obligations to properly verify the identity and employment authorization of its workforce. When investigating compliance, ICE will typically review I-9 Employment Eligibility Verification forms for each employee to see if they have been completed and to confirm the forms’ accuracy. An employer who fails to complete an I-9 or incorrectly completes a form is subject to civil or criminal fines. An employer faces the same liability if an I-9 indicates a particular employee is not authorized to work in the United States.

The best way for an employer to protect itself against potential liability for violations is to periodically review existing I-9s for compliance and to re-train the individuals responsible for completing the forms. In an effort to assist employers in avoiding claims of unfairness, discrimination or retaliation regarding such reviews, on December 16, 2015, ICE and the Office of Special Counsel for Immigration-Related Unfair Employment Practices issued their Guidance for Employers Conducting Employment Eligibility Verification Form I-9 Audits. A link to the guidance can be found here.

Practical guidance for conducting a self-audit

The guidance is very practical. Some valuable recommendations include:

• If accused or unfairness or discrimination, be prepared to explain the purpose or motivation for your audit.
• Plan the scope of the audit. An employer may review all I-9s or a sample, so long as the selection is neutral and non-discriminatory.
• Keep the process transparent. Inform employees you are conducting an internal audit of I-9 forms and the reason for doing so.
• Provide employees with a way for them to communicate to you any concerns or issues regarding the process or their own I-9s.
• When a deficient I-9 is found during the audit, inform the employee and provide the employee with a copy of the deficient form.
• Deficiencies found in Section 1 of a form must be corrected by the employee – not the employer. Do not destroy deficient I-9s. Have an employee correct, initial and date the corrected form.
• Errors found in Sections 2 or 3 of a form may be corrected by the employer. The same no-destruction and correction rules apply.
• • If you discover an I-9 was not completed or missing, a new I-9 should be competed immediately. Do not backdate the new form, but do attach a signed and dated explanation of what occurred and why.
• If you discover an employee did not provide sufficient documentation when their original I-9 was completed, an employer may request the employee to present satisfactory documentation. Then include the updated I-9, together with a signed and dated explanation of what occurred and why, with the original form.
• Employers may only request existing employees to complete a new I-9 if there is evidence the original form was deficient, erroneous or lacked sufficient documentation. In those cases where an employee is required to complete a new I-9, the employer should include the corrected/updated I-9, together with a signed and dated explanation of what occurred and why, with the original form.

Periodic I-9 self-audits and re-training remain advisable for employers wanting to avoid the sting of an ICE enforcement action, and this new guidance offers a roadmap for employers on how to conduct an effective and legal review of its processes.