Federal immigration law requires employers to verify that every employee has proper work authorization. The form that employers are supposed to use to document an individual’s eligibility to work is called an I-9.
Employers and human resources personnel sometimes wonder whether they can and/or should review their internal I-9 files. Sometimes, the I-9 folder is a mess and incomplete. Is it better to bury your head in the sand or to take the necessary steps to get your company’s I-9 files in compliance.
Given the fines involved for I-9 missteps, the best course of action is usually going to be to conduct an internal audit of the I-9 records.
Immigration and Customs Enforcement and the Department of Justice recently issued a joint memo with some tips for employers to keep in mind when considering an audit, including:
- The law does allow the employer to conduct an internal audit. But the audit either needs to be of each and every I-9 record or of a group of randomly selected records that are not targeted at one particular individual or group of individuals.
- The existence of the audit and the purpose of the audit should be conveyed to the employees in a neutral, non-threatening manner. Individuals cannot be targeted or intimidated with a review of their I-9 file.
- Transparency is the key. The employees should be notified in writing of the audit. If a discrepancy in a record exists, the employee should be notified discreetly and given documentation of the problem. If the employee is not fluent in English, efforts should be made to explain the situation to him or he in their native language.
- If an error is found in Section 1, the employee should be asked to correct it and initial and date the correction. The employee can get help from a translator or assistant. The translator or assistant’s help should be noted. If the employee no longer works for the employer, documentation of the error should be written out, signed, dated and attached to the original I-9.
- For Sections 2 and 3, the employer can make corrections and sign/date the corrections. Prior errors or omissions should not be blocked out. A record needs to remain of what happened originally and what edits were made.
- If no I-9 was completed for a particular employee, a new I-9 on the current form should be completed immediately. The form should not be backdated, but should state the actual date of employment and the actual date the form was completed. An explanation should be prepared on a separate sheet, signed, and stapled to the new I-9.
- If an employer realizes that an employee’s I-9 does not contain sufficient documentation to satisfy the requirements, the employee should be asked to present documentation sufficient to meet the requirements of the current form of I-9. The completed, signed and dated Section 2 or 3 of the current version should be stapled to the prior, incomplete I-9.
- An employer should never request specific documents when preparing the I-9. It is the employee’s choice as to what documents to present.
- If an employer’s I-9 records are a mess, ICE cautions that the employer should not simply obtain new I-9 forms from all employees. “Without sufficient justification, requiring an existing employee to complete a new I-9 may raise discrimination concerns. If a new I-9 form is prepared, it should be stapled to the prior I-9 form.
- An employee should be given a reasonable amount of time to present work authorization documents, when legally requested to do so.
- If during the I-9 audit process, an employee admits that he or she is not work authorized, the employee must be terminated. It is unlawful for an employer to knowingly employ someone who lacks work authorization. “Knowing” includes not only actual knowledge, but also knowledge which may be reasonably inferred through knowledge of certain facts and circumstances that a reasonable person would know.
- If an employee lacked the authority to work previously, but now has current employment authorization, termination of the employee is not required. An employer may continue to employ the employee upon completion of a new I-9 with proper documentation.
- An employer is authorized to have a third-party conduct the audit, but the employer is not absolved of civil penalties simply because they hired a third-party to conduct the audit.
The I-9 process appears deceptively simple. However, there are small and large pitfalls associated with the I-9 process and can lead to big problems for an employer. Don’t go through this process empty-handed.