Official Guidance Released on Conducting Audits of I-9 Forms | Practical Law

Official Guidance Released on Conducting Audits of I-9 Forms | Practical Law

The Department of Justice (DOJ) and the Department of Homeland Security (DHS) have jointly issued guidance for employers conducting internal audits regarding the Form I-9 Employment Eligibility Verification program.

Official Guidance Released on Conducting Audits of I-9 Forms

Practical Law Legal Update w-001-0784 (Approx. 5 pages)

Official Guidance Released on Conducting Audits of I-9 Forms

by Practical Law Labor & Employment
Published on 21 Dec 2015 • USA (National/Federal)
The Department of Justice (DOJ) and the Department of Homeland Security (DHS) have jointly issued guidance for employers conducting internal audits regarding the Form I-9 Employment Eligibility Verification program.
On December 14, 2015, the DOJ's Civil Rights Division and the Department of Homeland Security (DHS) Immigration and Customs Enforcement (ICE) division announced that they have jointly issued guidance for employers conducting internal audits of their Form I-9 Employment Eligibility Verification Form program. Form I-9 is used by employers to:
  • Verify that employees are authorized to work in the US.
  • Comply with the prohibition under the Immigration and Nationality Act of 1952 (INA) on knowingly hiring unauthorized workers.
Employers typically conduct Form I-9 self-audits to assess whether their completion, updating, and storing of Form I-9 complies with the INA. The joint guidance is intended to ensure that employers:
  • Conduct Form I-9 audits properly and accurately.
  • Do not:
    • discriminate or retaliate against their employees; and
    • create barriers to employment for work-authorized individuals.
The guidance addresses issues surrounding Form I-9 audits, including:
  • The appropriate purpose and scope.
  • Considerations of employers preparing to conduct audits.
  • Ways for employers to avoid discriminatory or retaliatory behavior in completing audits.
  • Information employers should communicate to their employees before and during an audit.
  • The procedure employers should follow to correct Form I-9 errors and omissions.
The guidance also addresses several substantive questions about Form I-9, including:
  • How an employer should determine whether documents presented for Form I-9 Section 2 met employment eligibility verification requirements.
  • What an employer should do when it discovers that:
    • Form I-9 was not completed or is missing; or
    • an entire section was left blank.
  • What an employer should do if an internal audit uncovers photocopies of identity or employment verification documents that do not appear to:
    • be genuine; or
    • relate to the employee.
  • The guidance is available at both:
  • The DHS's website.
  • The Civil Rights Division's Office of Special Counsel for Immigration-Related Unfair Employment Practices website.
The guidance is part of the six-month action plan formulated by the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (interagency working group). The DOL issued a fact sheet detailing the interagency working group's action plan, recently adding an "Action Plan Updates" section to the fact sheet that discusses the joint guidance.