NPZ Immigration Law Blog

At the end of 2015 there were two (2) important developments in the workplace enforcement arena that will be of great interest to Human Resources Managers and Professionals. First, a special memorandum or guidance was issued jointly by the Department of Homeland Security (“DHS”) and Department of Justice (“DOJ”) with regard to conducting internal I-9 audits. Second, a recent release from the Department of Homeland Security (DHS) discusses the status of a new I-9 Form that DHS has submitted for notice and comment.

On December 16th, 2015, DHS and DOJ jointly issued additional new guidance for employers about how to conduct internal audits. Oftentimes this process is referred to as the “self-audit” process. Self-audits remain instrumental as a methodology available for any employer seeking to minimize financial penalties due to incorrect I-9 Forms and to reduce the likelihood that the employer has inadvertently hired an unauthorized worker in contravention of the provisions of the Immigration Reform and Control Act of 1986 (as amended).

The process of conducting a self-audit can present many sticky issues. For example, if an employer is involved in a self-audit, and in doing so, fails to treat each employee in the organization “similarly” then the employer may be subject to penalties and liabilities under the anti-discrimination provisions of the Immigration and Nationality Act. Additionally, if documents of some employees are “suspect” but others are not, how does the employer address this issue? If the employer decides to do new I-9 Forms then the questions of which I-9 Form to use and how to do the I-9 process are also common questions.

The DHS and DOJ have attempted to provide guidance for employers seeking to avoid discrimination charges against employees when conducting an I-9 self audit. The agencies have also provided guidance on key practical questions that an employer completing a self-audit. For many years this continued to be a gray area that was not addressed by the M-274, Employer’s Handbook or by the guidance issued online at I-9 Central.

For example:

• What is the procedure for correcting an error or omission on an I-9 Form?
• What should an employer do if the wrong version of the I-9 Form was completed?
• What should an employer communicate to employees before and after conducting an internal I-9 Form audit?
• How many days should an employee be provided to present more or additional or different documentation if an I-9 Form self-audit leads to the inescapable conclusion that the employee’s I-9 Form or supporting documents are deficient?

The new guidance document issued by the DOJ and DHS addresses how E-Verify employers should deal with circumstances where an E-Verify case has not been created for all new employees hired after the date of E-Verify enrollment, or the employer discovers an employee was terminated based on the receipt of a tentative non-confirmation (“TNC”).

In addition to the foregoing, on November 24th, 2015, the USCIS issued a new Form I-9. Please note that employers must continue to use the current version of Form I-9 until the proposed changes are approved and a new Form I-9 is promulgated to the public and posted on the USCIS website. Employers need to be aware of the proposed changes to the I-9 Form.

Based on our review of the proposed modifications to the I-9 Form and the previous release that the Nachman Phulwani Zimovcak (NPZ) Law Group sent in December, 2015, the following are some of the proposed modifications to the I-9 Form that we are likely to see:

• Clarification that the “other names” field in Section 1 is only for other “last names” which will likely reduce confusion about the intent of this field.
• The addition of a special section for notations in Section 2 dealing with special forms of work authorization (such as AC-21, 240-day work authorization, etc.) will help employers and likely additional modifications to the M-274 explaining same may be quite helpful.
• The separation of the Form I-9 instructions from the actual Form will reduce the paper burden for employers
• The addition of multiple spaces for multiple translators will be particularly useful in industries with a heavy concentration of foreign nationals who do not speak English
Also, it appears that a barcode to the I-9 Form has been added to streamline the audit process. The additional of the barcode is likely to be helpful in the “chain of custody” process that continues to plague the I-9 Form audit process for many years.

The recently promulgated self-audit guidance and proposed changes to the Form I-9 seem to be a good “crystal ball” for employers. These items are a clear “weather vane” that point in the direction for 2016 that the U.S. Federal Government is likely to want to continue to enhance “worksite enforcement” and monitor and enforce the employment of authorized and unauthorized workers.

While the proposed modifications to the I-9 Form and not too significant, it is important to note that Human Resources Managers and Human Resources personnel who are responsible for completing the I-9 Form for organizational employees will be required to familiarize themselves with these proposed changes.

Employers throughout the U.S. will have to continue to be vigilant about I-9 Form compliance issues in the hiring and retention of its employees. Immigration and Customs Enforcement (“ICE”) continues to prioritize I-9 compliance; in 2014, ICE initiated 2,022 cases resulting in 1,320 I-9 audits, 172 criminal arrests of employers, 541 administrative arrests of aliens, and issuance of 637 final orders totaling over $16.2 million in assessed fines.

As many HR Managers and Human Resources Professionals are aware, if an I-9 Form audit is notices by DHS, that process begins with a notification from the Worksite Enforcement Division of the Immigration and Customs Enforcement Office. Once noticed for an I-9 Form investigation, the I-9 Forms must be provided for inspection within 3 days of the request.

Employers are reminded that the I-9 Forms should be stored in a manner (paper or electronically) that allow for the documents to be available for inspection. However, and as may be necessary under both State and Federal Laws, the documents will have to be retained in a manner that safeguards the confidential information on the documents.

As we have always advised, if an employer decides to store the forms electronically, the electronic storage system must include controls to ensure accuracy of the system, detection and prevention of unauthorized or accidental alteration of the forms (including the e-signature), and an audit trail of any alteration /change that can be accessed and inspected during an I-9 audit.

Also, and as our Law Firm continues to advise, to avoid potential I-9 Form liabilities, employers are advised to establish procedures and schedules to regularly conduct self-audits. In our discussions with ICE and with other DOJ and DHS officials, it appears to be the case that I-9 Form “best practices” recommends that self-audits occur periodically (annually or every two years) to ensure that compliance issues are addressed for new hires, terminations, changes to work authorizations and potential irregularities in employee I-9 Forms.

If you or any member of your HR Management staff should have any questions or require any additional information about the new proposed changes in the worksite enforcement arena, please feel free to contact the Business Immigration Lawyers and Attorneys at the Nachman Phulwani Zimovcak (NPZ) Law Group, P.C. by e-mailing to us at info@visaserve.com or by calling our office at 201-670-0006 (x107). We look forward to being able to assist you and guide you and your staff in the I-9 Form self audit or investigation process.