Form I-9 Compliance: New Guidance Issued

By Martha J. Zackin

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.