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Pre I-9 Audit Planning: Prepare for the Worst and Hope for the Best

In Part 1 of  this 2 part blog post on the I-9 and E-Verify Blog, I discuss some of the most common and most troublesome outcomes of an ICE or in-house I-9 audit, including I-9 errors, finding fraudulent documents and identifying undocumented workers. The article looks at  how employers can make plans ahead of time to adress even the worst case scenarios.

Part 2 coming on February 23 will discuss more worst case scenarios, including complaints to the Office of Special Counsel, Community/Union involvement and employee walkouts. The article also discusses communications with employees during an audit and the importance of consistency when making I-9 audit policies and decisions.


I-9 Audit Guidance for Employers from the Office of Special Counsel

The DOJ Office of Special Counsel for Immigration Related Employment Practices( OSC)  has issued guidance for employers who are going through an ICE I-9 audit or conducting their own I-9 audit.  Employers often inadvertently take actions during an audit that are overbroad and reactionary and which sometimes can be considered to be discriminatory or a form of I-9 document abuse. The  OSC guidance is meant to help employers navigate the intricacies of rigorous I-9 employment eligibility verification practices while at the same time respecting employee rights.

The OSC urges employers to establish a transparent process for interacting with employees during any federal audit, especially those employees whose I-9s may be defective or who ICE has indicated possess faulty identity and/or work authorization documents.  The OSC  encourages  employers to provide written notice to employees in these categories, advising them both of the reason for the audit as well as the specific deficiencies with their documentation.  

Employees with deficient documentation  should be provided with acceptable list of documents on page   of the I-9 form and provided with a short reasonable time period to return to work with documents from the list.  Employers with unionized  workforces should also advise the union of the audit and determine whether any provisions of the collective bargaining agreement may be implicated.

The OSC also makes clear that during an audit or I-9 correction process, employers should never single out any employees because they look or sound foreign selectively scrutinize employees of a particular race or nationality, suspend or terminate employees without giving them a reasonable chance to comply with documentation requirements, narrow  the range of allowable I-9 documents from what the form allows, or require more documentation than what the I-9  ordinarily requires.

The OSC guidance is helpful, but should never be used as an excuse to continue employing a clearly undocumented worker. Once an employee has been given sufficient time to present acceptable documents and is unable to do, the worker must be terminated no matter how difficult the decision for an employer. This act will demonstrate an employer’s commitment to maintaining a legal workforce, and eliminate the possibility that the employer may be charged with continuing to hire and unauthorized worker.









In House I-9 Audits : A How To Manual - 2/15 Webinar

Last week  ICE launched 1000 new I-9 audits. This week, 5000 employers with prior I-9 violations are being re-audited. Next week, it could be your company. Correcting techincal and substantive violations now will save employers a lot of liability in the long run. Our 1 hour webinar will discuss the basics of conducting an in-house I-9 audit, including what the audit should cover, who should conduct it, how and which I-9 corrections can be made and how to document the audit results. With I-9 investigations and penalties increasing exponentially, there is no time to lose. Bonus material includes an update on current enforcement trends, Social Security No Match, and Department of Justice actions against employers for immigration-related discrimination.

For more information visit the sign-up page here.


Look at the Facts not the Faces: Rug Manufacturer Pays $10K to USC Citizen of Hispanic Origin for Discrimination during the I-9 Process

The Department of Justice (DOJ) announced another recent settlement with an employer for document abuse during the I-9  process. A former employee of Garland Sales, Inc., filed a complaint with the DOJ  Office of Special Counsel for Immigration Related Discrimination after he was terminated from employment for refusing to provide his employer with the specific documentation it requested for completion of his I-9 form.

The complainant was a naturalized U.S. citizen of Hispanic origin. For completion of his  I-9, he provided an unexpired driver’s license (List B) and an unrestricted social security card (list C). Garland accepted these, but also requested that he provide his green card, to prove that he was legal to work in the United States. When the worker objected, Garland terminated his employment.

The documentation the employee presented were absolutely sufficient for I-9 purposes, therefore Garland committed document abuse when it requested more and different documents than what was required for the I-9 form. The employee was well within his rights to refuse to provide the additional document, and in fact would not have even had a green card in his possession because he had already become a US Citizen.

In an effort to make sure that they are doing everything possible not to hire an undocumented worker, employers sometimes go beyond what is allowable during the I-9 process. Unfortunately this has negative consequences as well, as shown by the settlement Garland reached with DOJ, which included a civil money penalty, back wages and retraining of all workers involved in the I-9 process. 

In addition, it is much more likely now that Garland will be subject to an I-9 audit by ICE and repeated reviews of its I-9 and hiring practices by the DOJ.  The best way to avoid these long term consequences is to ensure that hiring, I-9 and E-Verify processes are fair and non-discriminatory in nature. As the DOJ campaign says “Look at the Facts, Not the Faces.”

For more on acceptable I-9 procedures, review the DOJ's Guide to Fair Employment.



ICE Revisits Past I-9 Offenders with new round of Audits

In the past few weeks, Immigration and Customs Enforcement (ICE) has initiated a new round of I-9 investigations targeting employers who have been cited for I-9 violations in the past 3 years.  Audit notices have been sent to about five thousand such employers requesting  review of all new I-9s as well as previously audited I-9s. These records will be reviewed to make sure that past violations have been corrected and have not been repeated in newly completed I-9s. 

Employers may be charged  with treble damages when  they are found to have continuing I-9 errors from their initial audits, and/or to have committed the same errors again on recently prepared I-9s.  ICE investigations under the Obama Administration, although less dramatic than  the well-publicized raids under the Bush Administration, where undocumented workers were lined up, arrested and eventually deported, are no less troublesome and disruptive for employers. Often these “silent” raids like their predecessors also result in the identification of suspect documents and undocumdnted workers.

During the audit, ICE will review all I-9s for technical and substantive violations as well as verify the immigration/citizenship status of all workers. If a worker turns out to be undocumented, he/she must be terminated from employment, or the employer will face criminal and civil penalties for continuing to employ an undocumented worker after learning of his/her status. The significant increase in fines that may be levied in a re-audit situation is a strong motivator for ICE agents, so employers should be wary of ICE officers who seem helpful, and who sometimes even discourage employers from correcting technical I-9 violations.

To avoid initial or repeat  I-9 penalties, employers need to take steps to ensure their I-9 compliance  system is solid. Specifically, employers who have been audited, should ensure that all required corrections were made; suspect documents were investigated, and any undocumented workers removed from employment.  These employers should also conduct a self-audit on all I-9s created after the ICE audit. Continuing and common reoccurring violations should be quickly corrected and addressed through training of staff and reediting of the forms to ensure that corrections were done properly. Employers who have not yet been audited, should review all I-9 policies and procedures to ensure they are up to date with all of the latest guidance from USCIS and the Department of Justice.  Personnel tasked with I-9 completion should be re-trained in light of the numerous changes to I-9 policy guidance from USCIS as well as  to the list of acceptable documents.

For more information on this or any other I-9 compliance issue, contact Valentine Brown at


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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.