DOJ Issues best Practice Advice for Employers Facing I-9 Audits

The Office of Special Counsel for Immigration-Related Unfair Employment Practice recently released advice on best practices for employers to use in response to audits by Immigration and Customs Enforcement (ICE). The Office of the Special Counsel specifically advises that employers need to effectively communicate with employees and unions to assure that the audit process is transparent and not discriminatory. To do this, employers should develop a uniform plan for informing all employees that the employer is subject to an ICE audit. Employers should provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE and treat all workers in the same manner during the audit. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same time frames and the same choice of Form I-9 documents to present.

The Office of the Special Counsel further advises that an employer should assure that an employee knows why the employer is seeking I-9 information. The employer should tell employees from whom it seeks information that the information is sought in response to an audit. The best practice is to relay this information in writing and describe the specific basis for the discrepancy and/or what information is needed. Moreover, if employees are represented by a union, the employer should inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.

There are also several practices the Office of the Special Counsel suggests employers avoid. For example, an employer should not selectively verify the employment eligibility of certain employees based on their national origin or citizenship status. An employee should not be treated differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S. In addition, no employee should be terminated or suspended without providing them with notice and a reasonable opportunity to present valid Form I-9 documents.

As far as the collection of documents, the Office of Special Counsel suggests that an employer should not ask an employee to provide additional evidence of employment eligibility or more documents than ICE is requiring it to obtain, but should also not limit the range of documents that employees are allowed to present for purposes of the Form I-9. By doing this, the employer gives the employee the opportunity to present valid documentation but does not require more than is legally necessary.

An employer’s response to an I-9 audit can raise challenges and tension with employees. The advice of the Office of the Special Counsel aids employers in reducing these conflicts without compromising their obligations to comply with the audit. As such, employers should utilize this advice during I-9 audits.