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Jan 13, 2016

New guidance for employers conducting internal I-9 audits

Harassment & DiscriminationHiring 

In an effort to ensure that employers follow best practices and do not engage in discriminatory practices, the US Justice Department’s Civil Rights Division and the Department of Homeland Security’s US Immigration and Customs Enforcement (ICE) have issued joint guidance for employers who choose to conduct internal audits of their Form I-9s to ensure that the audits are conducted properly and do not discriminate against employees.

In an effort to ensure that employers follow best practices and do not engage in discriminatory practices, the US Justice Department’s Civil Rights Division and the Department of Homeland Security’s US Immigration and Customs Enforcement (ICE) have issued joint guidance for employers who choose to conduct internal audits of their Form I-9s to ensure that the audits are conducted properly and do not discriminate against employees. The six-page Q&A guidance balances an employer’s obligation to ensure employees are legally authorized to work in the United States with their obligations to not discriminate on the basis of national origin and citizenship.

The guidance follows the same practices that ICE has previously advised, basically; correct information by lining out the incorrect information and adding the correct information, initial and date the correction and attach an explanation if necessary. Of note, the guidance advises employers that they can not request to reexamine an employee’s documentation merely because a photocopy of the documentation originally used is unclear. Rather, employers must have a reasonable basis for requesting that employees resubmit documentation. The guidance cautions against requiring all employees to complete new I-9s unless there is a reason to believe there were “systemic deficiencies.” And the guidance reminds employers that there are no set timeframes for allowing employees to re-present their documentation as a result of an internal audit but rather, employers should take into consideration the particular circumstances in determining how much time is appropriate. Finally, the guidance reiterates the Social Security Administration’s position that the Social Security Number Verification Service (SSNVS) is not to be used to verify employment authorization.

Conducting an internal I-9 audit can be rife with pitfalls. For assistance with an audit, see our Legal Guide “Form I-9: Surviving an Immigration Audit” and contact your Vigilant employment attorney.

See other articles regarding hiring and I9s.

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