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By: Jacob T. Muklewicz—Kirton McConkie
This article provides guidance on responding to an investigation (i.e., an audit) by a government agency of an employer’s I-9 records. The article mainly focuses on the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) agency, which conducts most I-9 government audits.
ALL U.S. EMPLOYERS ARE REQUIRED TO VERIFY THE identity and work authorization of their U.S. employees hired after November 6, 1986, pursuant to the Immigration Reform and Control Act of 1986 (IRCA). Employers should document employment authorization verification on Form I-9. Further, employers are required by law to maintain the forms for government inspections.
The following government entities may conduct Form I-9 audits:
The OSC investigates and prosecutes allegations of discrimination under Section 274B of the Immigration and Nationality Act (the Act or INA) (INA § 274B; 8 U.S.C. § 1324b). Investigations focus primarily on allegations of national origin and citizenship status discrimination in hiring, firing, and recruiting for a fee, but they also deal with unfair documentary practices during the I-9 employment verification process.
You must therefore advise employers that they may not specify which documents the employee must present to establish identity and employment authorization as this may lead to charges of discrimination by the OSC. You must also advise employers that they may not over-document (i.e., ask for more documents than necessary to complete the I-9 process) or require re-verification for certain classes of employees, such as lawful permanent residents. This may also lead to charges of document abuse by the OSC.
To read the full practice note in Lexis Practice Advisor, follow this link.
Jacob T. Muklewicz is a shareholder at Kirton McConkie. His practice focuses on business and investor immigration. He helps employers and investors obtain the proper visas for their executive, managerial, and professional personnel and their families. He also counsels foreign nationals regarding the employment-based green card and naturalization process
For additional information on Form I-9 requirements and compliance, see
> DEVELOPING AN I-9 POLICY AND BEST PRACTICES FOR I-9 COMPLIANCE
RESEARCH PATH: Labor & Employment > Business Immigration > Employment Eligibility Verification > Practice Notes > I-9 and E-Verify
For a discussion of the requirements of the Immigration Reform and Control Ac, see
> VERIFYING EMPLOYMENT ELIGIBILITY (I-9 AND E-VERIFY)
For a discussion of best practices in responding to I-9 audits, see
> CHECKLIST – BEST PRACTICES FOR HANDLING FORM I-9 GOVERNMENT AUDITS
RESEARCH PATH: Labor & Employment > Business Immigration > Employment Eligibility Verification > Forms > I-9 and Verify
For more information on I-9 enforcement, see
> BUSINESS IMMIGRATION LAW: STRATEGIES FOR EMPLOYING FOREIGN NATIONALS § 8.07