In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co. Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S. The fine: a record $95 million.
In response, more and more employers are considering self-audits before DHS comes knocking at their doors. While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability. Here are but some examples:
- In the interest of being super compliant, some employers have considered having all employees execute new I-9s. This is not super compliant, but rather super dangerous. It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
- Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers. The answer is an unequivocal “NO.”
- Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names. This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
- Inevitably, employers may find that some I-9s are missing. In these cases, employers should complete new I-9s, dating them on the date in which they are completed. NEVER back date.
- In other cases, employers may find I-9s that are incomplete. In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
- In still other cases, there may be a mistake. No employer ever should white out anything on the original I-9. Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
- The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings. But this is another blog for another day.