Thawing the ICE: Using Internal Audits to Reduce Form I-9 Exposure

by Bradley Arant Boult Cummings LLP

As the 100-day mark of President Trump’s tenure approaches, it’s clear that the new administration intends to take a tough, aggressive approach to immigration enforcement – and employers are sure to feel the heat. The President has already taken a number of measures designed to strengthen employer compliance with the H-1B and other legal work visa programs. And administration officials have repeatedly emphasized that the laws prohibiting the employment of unauthorized workers will be enforced vigorously.

Among other things, U.S. Immigration and Customs Enforcement (ICE) is expected to step up the use of Form I-9 administrative audits, its primary tool for investigating worksite immigration compliance. An employer hit with a Form I-9 audit can incur heavy fines and other sanctions if ICE finds that the employer is using unauthorized workers or has not properly completed Form I-9’s for all of its employees. As noted in a prior post, the U.S. Department of Justice recently issued a new regulation that significantly increases the fines that may be assessed for Form I-9 violations.

For this reason, you should consider conducting an internal audit of your Form I-9s before ICE shows up to investigate. A proactive audit gives an employer an opportunity to identify and correct errors in its Form I-9s and get any missing Form I-9s completed before it’s staring down the barrel of ICE’s gun. These audits, if properly handled, are viewed favorably by ICE and can greatly reduce your potential exposure. In fact, ICE has recently published guidance specifically designed to help you structure and implement these audits appropriately.

If you’re thinking about an internal audit, keep these key points in mind:

  • The individual conducting the audit needs to be thoroughly trained in Form I-9 procedures, but also independent from your regular Form I-9 verification process. Consider whether it would be best to use an in-house HR professional or an independent third party to conduct the audit. Don’t use anyone who’s involved with the routine completion of your Form I-9s and may be hesitant to address any deficiencies. And, because thorny, unanticipated issues can sometimes arise, it’s advisable for the auditor to have access to legal counsel.
  • You may audit your entire workforce or a representative sample. However, if you choose to audit the Form I-9s of some subset of your employees, be careful how you select the group to be audited. Choosing an audit pool based on citizenship status or ethnic background constitutes impermissible discrimination and must be avoided.
  • Make sure your employees are informed about the audit in advance. Explaining what you are doing, and why, before you get started can go a long way in reducing employee anxiety about the audit. A good way to alleviate your employees’ concerns is to make it clear that the audit is not government mandated, but part of your internal compliance efforts.
  • Initially, the auditor should develop a list of all current and former employees for whom the employer should have Form I-9s and compare that list to the employer’s original forms. The existing Form I-9s should then be reviewed for completeness and mistakes. If a current employee’s Form I-9 is missing—or is in such poor shape that it doesn’t actually show that the employee was verified—the employer should complete a new Form I-9. If an audit reveals that employees with temporary work authorization have not been timely re-verified, those employees should be re-verified immediately.
  • Form I-9s that are incomplete or contain mistakes may be corrected, but this should be done in a completely transparent manner. Employers should not backdate the forms or do anything—such as use white-out to correct mistakes—that might conceal the corrections. According to ICE’s published guidance, the best way to correct an error or omission on a Form I-9 is to (1) draw a line through the incorrect information, (2) enter the correct or omitted information, and (3) initial and date the corrected or omitted information. Employers are not allowed to make corrections to Section 1 of the Form I-9; if an error is discovered in that section, ask the employee to correct it.
  • Employers participating in E-Verify should understand that if an employee’s Form I-9 needs correcting – or is missing and must be completed – that does not mean that the employee should be E-Verified again. An employer’s Form I-9 obligations are separate from any obligations under the E-Verify program, and a current employee should be E-Verified only if the employer discovers that it inadvertently failed to E-Verify the employee in accordance with its E-Verify obligations.
  • Upon completion of the audit, the auditor should prepare a memorandum summarizing the entire process. In the event of an ICE investigation, this memorandum will provide valuable documentation of the employer’s proactive compliance efforts.

Given today’s immigration enforcement environment, it’s more important than ever for employers to satisfy their Form I-9 verification obligations. While an internal audit may not be a cure-all, it can help reinforce an employer’s compliance efforts and go far to reduce exposure in the event ICE comes calling.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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