This Workplace Enforcement Update covers two significant developments, namely new I-9 self-audit guidance published jointly by the Department of Homeland Security (“DHS”) and Department of Justice (“DOJ”) and the status of a new I-9 form that DHS has submitted for notice and comment.
I. New Self-Audit Guidance:
On December 16, 2015, the DHS and DOJ jointly issued new guidance for employers conducting internal audits on their I-9 forms. Self-audits are a key tool for an employer seeking to minimize financial penalties due to incorrect I-9 forms and to reduce the likelihood of employment of unauthorized workers. Nevertheless, self-audits can present thorny questions and are fraught with risk for an employer that fails to abide by the anti-discrimination provisions of the Immigration and Nationality Act.
The DHS and DOJ have provided instructive guidance for employers seeking to avoid discrimination charges against a particular subset of employees when conducting an I-9 audit. The agencies have also provided guidance on key practical questions that an employer completing a self-audit commonly asks, such as:
- What is the procedure for correcting an error or omission on an I-9 form?
- What should an employer do if the wrong version of the I-9 form was completed?
- What should an employer communicate to employees before and after conducting an internal I-9 audit?
- How many days should an employee be provided to present alternate documentation if an internal audit reveals that the employee’s I-9 or supporting documents are deficient?
The guidance document also addresses how E-Verify employers should deal with circumstances where an E-Verify case has not been created for all new employees hired after the date of E-Verify enrollment, or the employer discovers an employee was terminated based on the receipt of a tentative non confirmation (“TNC”).
II. New I-9 form submitted for Notice and Comment:
On November 24, 2015, the USCIS published for notice and comment proposed changes to the Form I-9, the document utilized by the federal government to ensure compliance with federal employment eligibility verification guidelines. While employers must continue to use the current version of Form I-9 until the proposed changes are approved and a new Form I-9 is posted on the USCIS website, employers should be aware of upcoming changes to the form that we deem likely.
We list below a practical summary of the most significant proposed changes to the Form I-9 and an assessment of their significance:
- Clarification that the “other names” field in Section I is only for other “last names” will reduce confusion about the intent of this field.
- The addition of a special section for notations in Section 2 dealing with special forms of work authorization (such as AC21, 240-day work authorization, etc.) will benefit employers.
- The separation of the I-9 instructions from the form will reduce the paper burden for employers
- The addition of multiple spaces for multiple translators will be particularly useful in industries with a heavy concentration of foreign nationals who do not speak English
ICE has also added a barcode to the I-9 form to streamline the audit process.
The new self-audit guidance and proposed changes to the Form I-9 indicate a continued interest by the federal government in monitoring and enforcing the employment of authorized workers. While the I-9 form changes are primarily cosmetic, it is important that Human Resources personnel tasked with completing this form for new hires familiarize themselves with these changes and the final form that should be available in 2016. Immigration and Customs Enforcement (“ICE”) continues to prioritize I-9 compliance; in 2014, ICE initiated 2,022 cases resulting in 1,320 I-9 audits, 172 criminal arrests of employers, 541 administrative arrests of aliens, and issuance of 637 final orders totaling over $16.2 million in assessed fines.
If an audit is requested, the I-9 forms must be provided for inspection within 3 days of the request. The I-9 forms should be stored in a manner (paper or electronically) that makes the forms available for inspection but safeguarding the confidential information contained within them. If an employer decides to store the forms electronically, the electronic storage system must include controls to ensure accuracy of the system, detection and prevention of unauthorized or accidental alteration of the forms (including the e-signature), and an audit trail of any alteration /change that can be accessed and inspected during an I-9 audit.
To avoid potential penalties arising out of an audit, employers are well advised to establish procedures and schedules for regularly conducting self-audits in light of ICE’s continued scrutiny of I-9 forms. Best practice recommends that self-audits occur periodically (annually or every two years) to capture new hires, terminations, changes to work authorizations and potential irregularities in employee I-9 forms. Employers may also consider auditing a particular subset of forms created during a particular time period due to indications of irregularities. Employers seeking guidance on creating an I-9 self-audit protocol should consult immigration counsel to avoid conducting a discriminatory audit.