Recently, I attended a panel discussion where an attorney from the Department of Justice Office of Special Counsel for Immigration-Related Employment Practices discussed I-9 audits conducted by employers in-house. She provided some helpful guidelines for employers to follow:
Training All employees conducting the audit should be trained on the anti-discrimination provisions in the immigration law. These would include national origin discrimination, citizenship status discrimination and document abuse. Each of these three types of discrimination could become a problem during an I-9 Self Audit if the employees conducting it treat different groups differently during the process. It is important that employees involved in the audit process understand how sensitive this issue is for employees and the huge ramifications for employers if a problem develops and the employer is investigated or charged with discrimination by the Office of Special Counsel.
Audit ALL I-9s: An employer should audit all I-9 forms. Employers should not select a particular shift, hire date, location or any other filtering factor to conduct an audit. Any time an employer makes a decision such as choosing a particular group to be audited for even legitimate business reasons, this reason may not hold up during a discrimination charge at a later date. As a result, the safest way to avoid any charges of discrimination is to audit all I-9 forms.
No Unnecessary Reverifications The Office of Special Counsel admonishes employers that they should not re-verify foreign nationals unnecessarily during an I-9 Self Audit. This is a common problem, wherein employers want to be extra careful and certain that their foreign nationals are authorized to work in the United States. This is considered a discriminatory practice by the Office of Special Counsel because the employer would be treating foreign nationals differently than non-foreign workers and also would be requiring more and different documents than what is required on the I-9 form itself.
No Reverification for LPRs: The Office of Special Counsel reminds employers that legal permanent residents never need to be re-verified. This is in spite of the fact that their legal permanent residence card will have an expiration date and that their status may eventually be changed to U.S. citizen. In spite of these possible changes, there is no need to ever re-verify the employment authorization status of a legal permanent resident. It should also be noted that persons with conditional permanent residence, as evidenced by a two year validity period on their green card also should not be re-verified during the I-9 process. This is a common mistake that employers make because of the fact that the card expires within two years. This is a violation of the anti-discrimination provisions and should not be a practice that the employer undertakes.
Consider Using a Neutral Auditor: The four best practices given by the Department of Justice are extremely helpful and should be followed by all employers when conducting a self audit. It is also recommended that at the start of an audit, employers retain immigration counsel to assist them in developing the audit procedure and also in training employees who will be conducting the audit. There is also some evidence to show that it is more beneficial to have the audit conducted by outside counsel. This is because often when an employer conducts a self audit in-house, employees are more likely to try and cover up or ignore mistakes in order not to bring additional scrutiny to their past actions. Having the audit conducted by a firm or company outside completely eliminates this possibility and assures the employer that they will get the most effective audit possible.