In 2009, the Department of Homeland Security (“DHS”) began auditing the I-9 practices of Asplundh Tree Experts Co. Last month, the Company pled guilty in Pennsylvania federal court to a charge of knowingly employing immigrants without authorization to work in the U.S. The fine: a record $95 million.
In response, more and more employers are considering self-audits before DHS comes knocking at their doors. While employers are well-advised to conduct an I-9 self-audit, there are legal minefields that need to be navigated or the self-audit may increase the employer’s potential liability. Here are but some examples:
- In the interest of being super compliant, some employers have considered having all employees execute new I-9s. This is not super compliant, but rather super dangerous. It raises serious discrimination risks under the Immigration Reform and Control Act (“IRCA”).
- Other employers have questioned whether the Trump Administration’s Executive Order on DACA workers (Dreamers) requires that employers complete new I-9s for these DACA workers. The answer is an unequivocal “NO.”
- Employers cannot select for inspection employees they perceive to be high risk, such as those on visas, or those with “foreign-sounding” last names. This type of targeted audit raises all but certain liability not only under ICRA but also the employment non-discrimination laws.
- Inevitably, employers may find that some I-9s are missing. In these cases, employers should complete new I-9s, dating them on the date in which they are completed. NEVER back date.
- In other cases, employers may find I-9s that are incomplete. In these circumstances, the employer, using a different color ink, should have the document completed (either by the employer and/or the employee, depending on the omission) and, again, the employer should date the change on the date in which it is made.
- In still other cases, there may be a mistake. No employer ever should white out anything on the original I-9. Rather, the employer, in a different color ink, should cross out the incorrect language, substitute the correct language and date same on the date the change is made.
- The employer should prepare a summary of the scope of the audit, the manner in which it was conducted, and its findings. But this is another blog for another day.
This blog should not be construed as legal advice.