On December 14, 2015, U.S. Immigration and Customs Enforcement (ICE) and the U.S. Department of Justice (DOJ) Civil Rights Division issued joint guidance for employers conducting internal Form I-9 Audits. The two agencies developed the guidance with significant input from the Department of Homeland Security’s (DHS) Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country.
Among other things, the guidance provides employers with information regarding the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate. The joint guidance can be found on DHS’s website: https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf and on the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) website http://www.justice.gov/crt/file/798276/download.
We urge employers to read the full guidance carefully prior to and during internal audits. The guidance is a good start when determining how to handle corrections in the course of an I-9 audit, although it is not a comprehensive guide that answers all questions that may come up. The guidance addresses some key concerns and issues that are commonly encountered in the course of in-house audits. For example, the guidance includes the following topics:
- Considerations prior to the audit: The guidance addresses concerns about the purpose and scope of the audit, as well as the recommended way of communicating with employees regarding any required corrections.
- The proper process for correcting errors and omissions: The most common error we encounter when we review Forms I-9 previously audited by employers without our assistance is the failure to properly make the corrections. The guidance emphasizes the correct way to make the revisions, generally by (1) drawing a line through the incorrect information, (2) entering the correct or previously-omitted information, and (3) initialing and dating next to the correction or inserted information, even if the correction involved a signature or date. The guidance also addresses the process for I-9 Form corrections for terminated employees as well as rectifying the use of a wrong form revision.
- Inappropriate actions in the course of correcting errors and omissions: In our experience, ICE is highly capable of discovering that a Form I-9 has been backdated or otherwise inappropriately modified after the initial verification process. Backdating is one of the actions that will almost always result in a very significant enhancement of the fine amount imposed in the event of an enforcement audit. Therefore, employers must be very careful not to use a retroactive date for any field, other than the date of hire. Further, employers are cautioned against concealing any changes made by erasing text or using correction fluid.
- What to do when it is discovered that an entire Form I-9 or one its sections is missing: When a form is missing or an entire section was not completed, the employer and/or employee should complete a new Form I-9 or section as soon as possible. Again, backdating is not permissible and the only retroactive date will be the date of hire. The employer must allow the employee to present a document or combination of documents from the Acceptable Documents List and the employee must not be required to present the same exact documents previously documented. An explanation should be attached to the form discussing the corrective action taken.
- What to do when it is discovered that a Form I-9 did not document sufficient documentation: This situation had been handled in several different ways in the past. The guidance clarifies that an employer should allow the employee the option to present acceptable documents from the list in the I-9 instructions. The employer may use a newly completed Section 2 or 3 of the current version of the Form I-9 and staple it to the prior I-9 form together with a signed and dated explanation.
- How to handle documents that do not appear genuine or related to the employee: This part of the guidance is not very clear on exactly what the consequences would be for the employer in a situation in which the employer discovered a document that does not appear genuine or related to the individual. The guidance states that the standard for reviewing the Form I-9 documents does not change from the time of initial employment eligibility verification until the time of the internal audit. Therefore, an employer could potentially be found to have hired an unauthorized individual if he or she is deemed to have had constructive or actual knowledge of the unauthorized status. This is a very fact-specific determination and could depend on factors such as training the employer underwent subsequent to the initial verification process, or a change in the compliance officer who conducted the initial verification. Whenever this issue comes up, employers are urged to consult with experienced immigration counsel to ascertain the best course of action, without violating employment verification or discrimination regulations.
- How to handle E-Verify errors: The guidance discusses actions to take when it is discovered that an employer did not create E-Verify cases for employees hired after enrollment. The answer depends on whether the failure was deliberate and relating to all employees, or an inadvertent error relating to certain employees only.
- Requiring existing employees to complete a new Form I-9 instead of making corrections to existing forms: In some situations it may be appropriate to redo the form, but employers must be careful not to require employees to unnecessarily undergo the verification process or do it in a discriminatory manner. Employers must always attach a copy of the previously completed form and a signed and dated memorandum addressing the changes and explaining why the new form was completed. The previous form should not be shredded. Additionally, it is important to remember that not all errors are created equal. Certain errors (referred to as “technical” or “procedural”) will not result in a fine if they are corrected on the Form I-9 within 10 days of discovery or receipt of a Notice of Procedural or Technical Deficiencies. However, if a new form is prepared, the new form will be untimely, which is a serious substantive violation that almost always results in a fine (unless time-barred by the five-year statute of limitations). In some situations, such as mergers and acquisitions, it may be prudent to redo all forms if there are a substantial number of substantive violations discovered with respect to the previously-prepared Forms I-9.
- How to handle an employee’s admission of unauthorized status: The guidance does not provide a definitive answer to this question, but defers to the statutory provision making it unlawful for employers to hire or continue to employ aliens knowing that the aliens are unauthorized. The term “knowing” includes actual knowledge, but also “constructive” knowledge, which may be inferred through a notice of certain facts and circumstances that would lead a reasonable person to know of a person’s unlawful employment status. Again, this determination requires a legal and factual analysis. A number of administrative court decisions address this issue and provide examples of circumstances that would give “constructive” knowledge to an employer. Notably, the guidance confirms that if the employee admits that he or she was previously unauthorized, but has now obtained work-authorization, the employer is not required to terminate the employee. The employer may continue to employ the employee upon completion of a new Form I-9 with the appropriate, genuine documentation.
- Timeline for termination of employees whose prior documents were deemed insufficient: The guidance addresses the “reasonable” amount of time for an employee to present alternative documentation after it has been found that the previously-presented documents were insufficient. Importantly, the guidance states that the 90-day period is not mandatory. It can be less or more depending on the circumstances. For example, if the individual claims to be employment authorized, he or she may be provided with a reasonable amount of time to obtain new documents to evidence work authorization. However, if the employer has received a Notice of Suspect Documents letter from ICE in relation to an enforcement audit by the Homeland Security Investigations (HSI), the employer must comply with ICE’s 10-day policy for employees that have been deemed by ICE to be unauthorized. An extended period of time may be appropriate in limited circumstances.
- Handling tips relating to unauthorized employees: The guidance cautions employers that tips and leads should not always be presumed to be credible. If the tips have no indicia of reliability, such as unsubstantiated, retaliatory or anonymous tips, the employer may be found to be in violation of discrimination regulations.
The above discussion is only a general summary of the information provided in the joint guidance. We urge all employers to review the complete guidance carefully and, when in doubt, to consult with other I-9 training materials or with immigration counsel. It is imperative for U.S. employers to be aware of the latest trends and requirements relating to I-9 compliance. Our firm provides a variety of services related to I-9 compliance, including voluntary audits and training, as well as representation in connection with enforcement audits by ICE. We have represented and advised employers in multiple industries with relation to I-9 compliance, including hospitality, restaurant, landscaping, production, retail, staffing, manufacturing, higher education, service provider and financial industries.