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.
• 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 additi