The employer hears a knock at the door. Surprise! ICE is on the other side to serve the employer with a Notice of Inspection to audit Forms I-9. Of course, the employer repeats the ever-popular phrase, “Keep Calm and Carry On,” but what happens next? Thoughts may be racing through the employer’s mind such as, “Let’s fix our I-9s immediately, but we won’t tell our employees why we are completing new forms.” Or, “We should request as much documentation as our employees can present to make certain we are covered.” Or, the increasingly popular, “Let’s request new documentation from ‘foreign’ employees so we can tell ICE that we took extra precautions against ‘foreign’ workers.” According to the recently released list of best practices during an I-9 audit, these actions may put the employer in hot water with the Office of Special Counsel (“OSC”), which is a division of the Department of Justice.
While ICE leads the I-9 audit itself, discoveries during the audit may lead to a discrimination suit by OSC. Recently, OSC published a list of “best practices” for employers subject to an I-9 audit. This list reaffirms the importance of walking a fine line during the audit, in which the employer must promptly and comprehensively respond to the audit while avoiding creation of more stringent rules than the I-9 process requires.
When audited by ICE, DO the following:
- Be transparent when interacting with employees during the audit, including communicating to them that the employer is the subject of an ICE audit.
- Provide all workers a reasonable amount of time to correct discrepancies in their I-9s, and treat all workers the same so that employees with similar discrepancies are provided the same timeframes and choice of documents to present.
- If employees are represented by a union, inform the union of the audit and determine whether this triggers additional obligations.
- When seeking specific information from employees, let them know that you are seeking this information pursuant to an ICE audit.
- Communicate with employees in writing and describe specifically what you need from them. Be sure to follow the instructions on the ICE notice and Form I-9 instructions when correcting defects.
In the event of an audit, DON’T take the following actions:
- Selectively verify certain employees based on their national origin or citizenship status upon receipt of an ICE Notice of Inspection.
- Terminate or suspend employees without providing them notice and a reasonable opportunity to present valid documents.
- Require employees to provide additional evidence or more documents than ICE is requesting.
- Limit the range of documents employees are allowed to present.
- Treat employees differently at any point because they look or sound foreign or based on assumptions about whether they are authorized to work in the U.S.
The official list of best practices can be accessed on the OSC’s website.
When served with an ICE audit, the employer should contact experienced immigration counsel immediately. Some employers believe they are being extra cautious by taking more than the required actions during an audit, but the impact could be the opposite.
If you have questions or would like further information, please contact Natalie Dressel at ndressel@wp.hallrender.com
or 317-977-1481, Michael Kim at mkim@wp.hallrender.com or 317-977-1418 or your regular Hall Render attorney.
