Justice Department Issues Guidance for Employers on I-9 Audits
An increase in I-9 audits over the past few years has spurred the Civil Rights Division of the U.S. Department of Justice (DOJ) to issue guidance for employers that are the subject of an I-9 audit. DOJ’s guidance shares best practices and steps employers should take to avoid charges of discrimination when faced with an Immigration and Customs Enforcement (ICE) I-9 audit.
DOJ suggests that employers do:
- Develop a transparent process for interacting with employees during an ICE audit, including communicating with employees that the employer is subject to an ICE audit; Provide workers with a reasonable amount of time to correct discrepancies in their records identified by ICE;
- Treat all workers in the same manner during the audit, without regard to national origin or citizenship status;
- Inform unions (if applicable) of the ICE audit and determine whether a collective bargaining agreement triggers any obligations;
- Inform employees from whom they seek information that they are seeing this information in response to an ICE audit;
- Communicate in writing with employees, describing the specific basis for the discrepancy and/or what information is needed from them; and
- Follow the instructions on the ICE notice and the instructions on Form I-9 when correcting errors on the forms.
In addition, DOJ suggests that employers do not:
- Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status;
- Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents;
- Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain;
- Limit the range of documents that employees are allowed to present for purposes of the Form I-9; or
- Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.
Because I-9 audits no longer involve multiple ICE agents arriving with guns, as was common during worksite raids in previous eras, some companies may assume that a notice of inspection (NOI) received from ICE is merely a formality and is not taken seriously, until it is too late. AGC has several resources that will provide guidance to employers who receive NOIs, including AGC’s Seven Critical Steps for Surviving an I-9 Audit, which outlines what to do when a NOI is received.
For additional resources and guidance on I-9 audits, visit the Labor and HR Topical Resources section of the AGC website. The primary category is “Other Legal Issues” and the secondary category is “Immigration and Employment Eligibility.”
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