Conducting internal I-9 audits
June 12th, 2018
David A. Selden and Julie A. Pace at The Cavanagh Law Firm
This blog is an excerpt from our book Employment Verification – An Employer’s Guide to Immigration, Form I-9 and E-Verify by David Selden and Julie Pace at The Cavanagh Law Firm. For more information, go to the Products tab above and click on "Federal" to subscribe.
For many years, an employer that wanted to conduct internal audits did its best based on legal advice and common sense without knowing what the government would think of its efforts and if, in attempting to correct errors, it might inadvertently have created other issues.
The U.S. Department of Justice (DOJ) Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) (now renamed the Immigrant and Employee Rights Section (IER)) had previously issued intermittent opinions on various practices. In December of 2015, U.S. Immigration and Customs Enforcement (USCIS) and the OSC issued a joint document entitled “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” USCIS also updated its I-9 Central webpage with “Frequently Asked Questions: Self-Audits.” An employer is still advised to consult with legal counsel if questions or issues arise while conducting an internal audit of its I-9 forms, but at least now employers have a better idea what position the government would take on certain issues relating to self-audits of the Form I-9.
The USCIS/OSC Guidance notes that following the Guidance does not necessarily insulate employers from liability for violations of the I-9 employment verification or anti-discrimination provisions of the Immigration and National Act (INA), as amended by the Immigration Reform and Control Act (IRCA), and that even conducting a self-audit will not ensure that the government will not impose fines if it finds violations. Employers, however, are advised to conduct regular self-audits and correct the I-9 forms, when possible, to minimize fines and penalties and demonstrate commitment to compliance with the applicable laws.
It is advisable for employers to conduct a routine self-audit to help ensure ongoing compliance with the employment verification, I-9, and E-Verify rules. The USCIS/OSC Guidance does not provide any instruction on how or why an employer should perform a self-audit, but emphasizes that employers should ensure that they are not discriminating in the conduct of the audit. For instance, if the employer is reviewing only a representative sample of its I-9 forms rather than every form, the employer must ensure that the criteria used to select which forms to audit is not discriminatory. The USCIS/OSC Guidance also warns against performing I-9 self-audits that are retaliatory, or that could appear discriminatory or retaliatory based on the time, scope, or selection of I-9s for the audit.
Choosing to audit the I-9 forms for every non-citizen and not auditing the I-9 forms of citizens would be discriminatory and lead to liability under the anti-discrimination provisions of IRCA.
If an employer chooses to audit all the I-9 forms from one specific location, this would likely be considered acceptable neutral criteria, unless the employer chose one location that it knew was predominantly non-citizens while the locations that were not audited were primarily staffed by U.S. citizens. Similarly, auditing all forms completed within a certain time period would likely be considered acceptable neutral criteria.
If an employer were to audit the I-9 forms of employees who were discussing a union or who had raised concerns about wage and hour issues shortly after such complaints were raised, it could appear that the employer was retaliating against the employees for their protected activity, which could create liability for the employer.
The USCIS/OSC Guidance suggests that employers document the standards that it decides to use for the Form I-9 self-audit and how it will ensure consistent standards in addressing any corrections that are needed to the Forms I-9.
Addressing self-audits with employees
The USCIS/OSC Guidance suggests informing employees about the scope and purposes of the self-audit. It is not necessary, and most of time is not advisable, for the employer to make a general announcement about an internal I-9 audit. Employers should, however, be prepared with a consistent process for communicating with the employees who may have to assist the employer in correcting an I-9 form or if questions arise about the audit.
The USCIS/OSC Guidance suggests that when there is an error or deficiency in the employee’s Form I-9 that he/she needs to correct, the employee should be informed confidentially of the specific issue that needs to be corrected. If the employee does not speak English, the information should be given to the employee in their primary language whenever possible. The USCIS/OSC Guidance also suggests informing the employee of how to seek additional information if he/she has questions or concerns about the self-audit or correction process.
To avoid potential discrimination claims, the employer should ensure that its communications with employees who are correcting their I-9 forms are consistent.
Correcting Section 1 errors
The USCIS/OSC Guidance suggests that only the employee, not the employer, may correct errors or omissions in section 1. The editors of this book generally advise that if it is a former employee, the employer can correct information that is in the employer’s files, such as address or date of birth, but cannot correct issues such as the attestation of citizenship status being incomplete or a missing signature or signature date.
If there is information missing or erroneous in section 1, the employer is supposed to ask the employee to correct the information by:
drawing a single line through the incorrect information (do not scribble or white out – the original information should still be legible under the single strikethrough)
entering the corrected or omitted information;
adding initials and the current date next to the corrected or added information.
If the employee needs the assistance of a preparer/translator, the preparer/translator can correct the information using the steps described previously. If the employee is able, the employee should initial and date next to the corrected information, then the preparer/translator should initial and date next to the employee.
If the preparer/translator previously completed the preparer/translator part of section 1, then nothing further is required. If they did not, then the person helping the employee make the corrections in section 1 should complete the preparer/translator box. If the preparer/translator certification was previously completed, the USCIS/OSC Guidance instructs that the preparer/translator should make a single line through the previous preparer/translator’s information and enter the current information, indicating “for corrections.”
The USCIS/OSC Guidance provides that if there are errors in section 1 that cannot be corrected because the individual is a former employee then the employer should attach a note to the I-9 (not write on the original I-9) stating the error and that it cannot be corrected because the individual no longer works for the employer. The authors of these materials suggest that if the employer makes such internal notes about the internal I-9 audit that it treats such records as confidential and does not necessarily attach them to the Form I-9 when produced for the ICE during an audit.
Correcting Section 2 and 3 errors
The USCIS/OSC Guidance instructs employers to correct errors or omissions on Section 2 or 3 of the Form I-9 using the same method that employees use in section 1:
drawing a single line through the incorrect information (do not scribble or white out – the original information should still be legible under the single strikethrough)
entering the corrected or omitted information
adding initials and current date next to the corrected or added information.
The USCIS/OSC Guidance again emphasizes that the employer should not use whiteout or erase or scribble out information on the Form I-9 or try to conceal corrections made.
Lost, incomplete or outdated I-9s
The USCIS/OSC Guidance states that if the employer used an outdated Form I-9 that had been replaced at the time it was completed, as long as the information on the form is correct the employer can keep the outdated, completed form and either:
sign a current version of the Form I-9 and attach it to the blank version with a note explaining that the wrong edition was used at the time of hire
attach a note (again do not write on the original I-9) explaining that the outdated Form I-9 was filled out correctly and in good faith at the time of hire.
If during an internal audit the employer identifies that it is missing an I-9 for a current employee, it should complete an I-9 as soon as possible using the most current version of the Form I-9, following all the standard procedures for completing a Form I-9.
If section 2 of the Form I-9 had been left blank, the USCIS/OSC Guidance suggests that the employer can complete section 2, including obtaining documents from the employee to verify identity and work authorization, but should ensure that it uses the current date when corrections were made and does not back date the Form I-9.
If section 2 of the Form I-9 does not contain sufficient information to establish identity and work authorization, such as a driver’s license is listed under column B but column C is blank or the individual’s work authorization document in section 3 was insufficient to establish work authorization, the USCIS/OSC Guidance instructs that the employer should ask the employee to provide documentation sufficient to meet the document requirements of the current Form I-9. The employer should complete section 2 or 3 (as applicable) on a new Form I-9 (including the employer certification) and staple it to the original Form I-9 along with a separate note explaining the corrections made. The employee can select which documents to present from the List of Acceptable Documents, and the employer cannot require specific documents. Again, USCIS/OSC Guidance reminds employers not to back date the Form I-9.
Addressing fraudulent or suspect documents
The USCIS/OSC Guidance cautions employers who have kept photocopies of documents used to complete the Form I-9 that they cannot request an employee to provide additional or different documents just because the copies of the documents that were retained are not clear. If documents do not reasonably appear to be valid or relate to the individual whose I-9 it is, the employer can ask the employee to provide other documents from the List of Acceptable Documents. The employer should keep in mind that it may be difficult to determine the authenticity of a document based on a photocopy. An employer must have a reasonable foundation for believing that the photocopied document was not genuine or did not relate to the individual who completed the Form I-9.
If the employer has grounds for believing that the documents presented at the time of hire were not genuine or did not relate to the individual, it cannot specify what documents the employee should provide. The employee must be provided with the opportunity to provide any acceptable documents from the List of Acceptable Documents to complete either column A or both columns B and C.
The USCIS/OSC Guidance also reminds employers that it cannot use internal I-9 audits to discriminate against, retaliate against, or intimidate employees.
If an employer discovers during an internal audit that it did not create an E-Verify case during a time period in which it was actively using E-Verify, the USCIS/OSC Guidance provides that the employer may bring itself into compliance by immediately creating an E-Verify case for the individual. If the employee was hired at a time where the employer was not enrolled in E-Verify or was enrolled in E-Verify but was not actively using E-Verify, then the employer should not create an E-Verify case for the individual.
The USCIS/OSC Guidance states that if during an internal audit an employer discovers that it terminated an employee based on an E-Verify Tentative Non-confirmation (TNC) without providing the employee the opportunity to contest the TNC, the employer should take corrective action, such as extending an offer of re-employment to the individual if they wish to contest their TNC. If corrective action is not possible, the USCIS/OSC Guidance suggests that the employer should document the reasons that the corrective action was not possible.
Complete new forms only as needed
The USCIS/OSC Guidance cautions employers against having employees complete a new Form I-9 unless there are errors or omissions on the original Form I-9. The OSC believes that requiring employees to complete a new I-9 when the original I-9 did not contain errors could lead to discrimination concerns. The Guidance continues, however, by reminding employers that if a new I-9 is completed for any employee, it should be stapled to the original Form I-9 and should be dated the date that is completed and not backdated.
Establishing a "reasonable" timeframe for reasonable recertification
The USCIS/OSC Guidance states that employers should provide a “reasonable timeframe” for the employee to bring in new documents. What is “reasonable” is determined on a case-by-case basis. There is no presumptive reasonable time period. Factors to consider when determining a reasonable time period including the “specific nature of the deficiency and the time required for the alternative I-9 documentation to be obtained." The Guidance also reminds employers that employees should be given the choice of acceptable documents from the List of Acceptable Documents and may not be required to present the same document presented on the original Form I-9. Further, employees should not be treated differently based on perceived or actual citizenship status or national original.
If the employer has knowledge that an individual is not authorized to work in the United States, it must take immediate action and may not give the employee “reasonable time” to acquire status if they are not currently work authorized.
If after a reasonable period of time the employee cannot provide documentation sufficient to correct or update the Form I-9 where required, the employer should consider the employee’s explanation for not being able to provide appropriate I-9 documentation and whether to provide additional time. The decision whether or not to allow the employee additional time to provide documentation must be based on an objective, non-discriminatory, and non-retaliatory basis. The USCIS/OSC Guidance provides that the employer should document its reasons for extending the time period and document the employee’s continued efforts to obtain the required documentation.
Actions to take upon the disclosure of fraud
The USCIS/OSC Guidance advises that if the employer acquires knowledge, either actual or constructive, that the employee is not work authorized, it is unlawful for the employer to continue to employ the individual.
If the employee discloses that at the time of hire they were not authorized to work in the United States, but they are currently work authorized, having obtained legal status, the USCIS/OSC Guidance provides that the employment eligibility verification laws do not require the termination of the individual’s employment. The employer may continue to employ the individual after completing a new Form I-9 with the valid work authorization documents.
The USCIS/OSC Guidance cautions employers against auditing a particular employee’s Form I-9 in response to a tip about the employee’s work authorization status. Although an employer violates IRCA if it continues to employ an individual with constructive knowledge that the individual is not authorized to work in the United States, an employer should use caution when responding to tips that do not have indicia of reliability. For instance, unsubstantiated, anonymous, or retaliatory tips should be viewed with caution. Asking an employee to provide additional documentation or complete a new I-9 based on unreliable tips may be unlawful and be an unfair immigration related employment practice.
Do not access SSNVS resources for a self-audit
The USCIS/OSC Guidance states that employers should not use the Social Security number verification service (SSNVS) during an internal audit. Additional Social Security Number Verification Services, the SSNV is to be used solely to ensure that the employer's records are correct for purposes of completing the Form W-2. A mismatch in the SSNVS system does not make any statement about the individual’s immigration status, but rather indicates an error in the employer’s or Social Security Administration’s (SSA's) records. The Guidance reminds employers that they are not to take adverse action against an employee based on a mismatch in the SSA’s records.