Current events are demonstrating the intersection of immigration and employment, adding to the ever growing list of compliance considerations for employers. At the beginning of employment, employees must complete a Form I-9, Employment Eligibility Verification, for employers to verify the identity and employment authorization of a new hire. Employees must complete and sign Section 1 of Form I-9 no later than the first day of employment and complete Section 2 within three business days after the employee’s first day of employment.

Immigration and Customs Enforcement (“ICE”), Homeland Security Investigations (“HSI”), Immigrant and Employee Rights Section (“IER”) of the Department of Justice, and the U.S. Department of Labor (“DOL”) have authority to inspect Form I-9, including any copies of employees’ documents retained with the corresponding Form I-9, in what is known as a Form I-9 audit.

What Happens in a Form I-9 Audit by Federal Authorities?

In a Form I-9 audit, employers will be issued a Notice of Inspection by one of the above federal authorities by mail or hand delivery. The Notice of Inspection typically requires all Form I-9s for active employees and for terminated employees whose forms must still be retained (typically, for one year after termination or three years after the date of hire, whichever is later), to be produced. Employers receive notice at least three business days in advance to produce their company’s Form I-9s to the applicable federal authority.

The applicable federal authority will then conduct an inspection, during which they can analyze compliance in reviewing Form I-9s and supporting documents. This process could take weeks or years to be completed.

In the event that the applicable federal authority finds employees who are not authorized to work in the U.S., employers will receive at least ten days to provide valid work authorization for these employees. If employers are unable to provide valid work authorization for these employees, the employer may be asked to terminate those employees. The employer will be required to inform affected workers of the audit and results. Employers may also face fines and/or sanctions for deficient I-9s or continuing to employ an employee without valid work authorization.

Steps Employers Can Take Prior to a Form I-9 Audit by Federal Authorities

 I. Form I-9 Internal Self-Audit

Employers can review all Form I-9s for active employees and for terminated employees whose forms must still be retained (typically, for one year after termination or three years after the date of hire, whichever is later) to determine any areas of non-compliance. ICE and the Office of Special Counsel for Immigration-Related Unfair Employment Practices, as well as the Department of Homeland Security (“DHS”), have provided guidance for employers conducting these Form I-9 self-audits and what can be corrected.

In a self-audit, all Form I-9s should be reviewed to avoid a discriminatory or retaliatory claim. As a first step, it is recommended that an employer inform employees about the self-audit, explaining the scope and reason, and stating whether the action is independent of or in response to a government directive (like a Notice of Inspection). An employer should also provide clear instructions for addressing questions or concerns related to the self-audit.

If a deficiency in an I-9 is discovered, the employer should notify the affected employee of the specific alleged deficiency. The employer should provide the employee with copies of the Form I-9, any accompanying documents, and any other documentation showing the alleged deficiency. If an error is discovered in Section 1 of an employee’s Form I-9, an employee must correct the error. Employers may only correct errors made in Section 2 or Section 3/Supplement B (the title depends on Form I-9 version). ICE and the Office of Special Counsel for Immigration-Related Unfair Employment Practices, as well as the Department of Homeland Security (“DHS”), have provided guidance for what can be corrected during a Form I-9 self-audit and specific steps to take.

Employers are cautioned against obtaining new Forms I-9 from its existing employees (absent acquisition or merger) without regard to whether a particular Form I-9 is deficient or without reason to believe that systematic deficiencies in the employer’s verification process call the integrity of all previously completed Forms I-9 into question. Without sufficient justification, requiring an existing employee to complete a new Form I-9 may raise discrimination, retaliation and intimidation concerns.

II. Determine Whether to Use E-Verify

E-Verify is an internet-based system that compares information from Form I-9 to records available to the DHS and Social Security Administration to confirm that employees are authorized to work in the U.S. For clarity, employers using E-Verify are still required to complete and maintain physical Form I-9s; E-Verify is in addition to the Form I-9 completion process employers must complete. An employer using E-Verify should create a case in E-Verify within three business days after the employee’s first day of employment.

Participation in E-Verify is required of employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (“FAR”) E-Verify clause are required to enroll in and use E-Verify as a condition of federal contracting; employers with employees in states with legislation that require participation in E-Verify (Minnesota requires public contractors and subcontractors with state contracts over $50,000.00 to use); and an employer may be required to participate in E-Verify pursuant to a court order. Employers may also voluntarily choose to participate on their own.

Using the system allows an employee to rely on E-Verify’s confirmation of an employee’s authorized work status, providing as an extra layer of protection and creating a presumption of good faith in the hiring process. However, use of E-Verify can come with its own challenges, including learning and using the system, potential errors, and it does not decrease the chance of a Form I-9 audit by federal authorities.

Application of federal employment laws may be difficult or complex to sort through and apply to your employees. Employers should review their procedures to make sure that they are in compliance. If you have questions about implementation of these changes or your company policies, please contact our Labor & Employment attorneys at (651) 439-2878.