Simple steps can avoid big problems for employers during a worksite I-9 audit
When an employer faces an ICE worksite audit, our office typically receives a frantic call from the employer who has only a few days to provide ICE with the company’s I-9 forms. A worksite I-9 audit is undoubtedly a stressful and frustrating experience. However, there are ways to make an ICE audit less trying on yourself, as the employer, as well your employees.
The U.S. Department of Justice, Office of Special Counsel for Immigration-Related Unfair Employment Practices, offers several suggestions for making the I-9 audit process smoother. The first of these is to notify your employees that your are subject to an ICE audit. Transparency is key when interacting with your employees during the audit and you also must be sure to treat all employees the same, whether they are citizens of the United States or not. This means setting the same time frame for all employees to present the Form I-9 and other documents.
When collecting documents from employees, it is helpful to give them a reasonable amount of time to correct any discrepancies in their records identified by ICE. Communicate in writing when requesting information from employees and describe the specific basis for discrepancy. Follow all instructions on the ICE notice and the instructions for the Form I-9 when seeking to correct Form I-9 defects, including the Lists of Acceptable Documents and the anti-discrimination notice. If any of your employees are represented by a union, you should notify the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.
The Office of Special Counsel also provides guidance on which practices should be avoided during an ICE audit. As an employer, you should not selectively verify the employment eligibility of certain employees based on their national origin or immigration status based on the receipt of an ICE Notice of Inspection. Similarly, do not terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents. Do not ask your employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain, but do not limit the range of documents that employees are allowed to present for purposes of the Form I-9. Finally, and most importantly, under no circumstances should you treat any employees 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. The above recommendations are intended to protect both employers and employees faced with an I-9 worksite enforcement audit.