The Immigration and Nationality Act (INA) requires employers to verify the work authorization of employees using the Form I-9. Some employers choose to conduct periodic internal audits of their Forms I-9, to ensure compliance. Concerned that improperly conducted internal audits could “create barriers to employment for work-authorized individuals,” the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s Civil Rights Division together published new Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.
The guidance, developed by DOJ and ICE with input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission, seeks to provide employers with, among other things:
- information regarding the scope and purpose of audits;
- considerations before conducting internal audits;
- details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and
- guidance regarding the anti-discrimination mandate.
For further information, the DOJ’s press release announcing the guidance may be found here.
Nothing in the law or this guidance requires employers to self-audit I-9 compliance. Those employers who choose to do so, however, should look to the guidance to help structure and implement self-audits in a manner consistent with the employer sanctions and anti-discrimination provisions of the INA.
Recently, an administrative law judge upheld a finding by the US Immigration and Customs Enforcement agency (ICE) that Employer Solutions Staffing Group II, LLC (ESSG), a Minnesota-based PEO focused on providing administrative and payroll functions to staffing companies, had violated I-9 regulations by making false attestations on 242 I-9 forms. The ALJ also upheld the fine of $227,251.75 imposed by ICE for the violations. A copy of the case may be found here.
In this case – and, perhaps, in other workforces challenged by the realities of remote workers – ESSG had local representatives review identity and eligibility requirement documents and affirm the documents’ authenticity. These local representatives also sent photocopies of the documents presented to ESSG, for ESSG’s review. Based on the representatives’ affirmations and review of the photocopied documents, ESSG personnel completed and signed off on Section 2 of I-9 forms relating to newly-hired employees.
The problem is this: by signing on Section 2, the person signing is attesting “under penalty of perjury … that [he or she has] examined the document(s) presented by” the subject employee. There is no provision within the applicable law or regulations that authorizes an employer to examine photocopies of documents, or to delegate the obligation to conduct an in-person inspection of employee verification documents. An employer may delegate this obligation to an authorized representative, however, if the employer also delegates to the same authorized representative the obligation to attest to the documents’ authenticity. In other words, the person signing off on completed I-9 forms must be the same person who reviews the original (not photocopied) documents, and certifies that the documents appear to be genuine and relate to the employee named.
This case is important, and stands for the proposition that the only correct procedure for verifying employee identity and authorization to work in the United States is by in-person inspection of original documents in the presence of the subject employee, with such inspection made by the employer representative attesting to the documents’ authenticity. In other words, no Skype or other technology will suffice.
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