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Pre I-9 Audit Planning: Prepare for the Worst and Hope for the Best

by Valentine Brown

There are many reasons why an employer may decide to conduct a voluntary I-9 Form audit: a merger or acquisition; a non-immigration related investigation by federal or state agencies, such as DOL or IRS; mandatory or voluntary E-Verify implementation; and of course the frantic last minute voluntary audit in preparation for turning I-9 Forms over to ICE for a mandatory audit. Regardless of the reason for a voluntary audit, employers need to think through the entire process and all of the attendant results and consequences before embarking on the endeavor. More importantly, employers must determine ahead of time what policies and procedures will be followed to respond to the results of the audit, whether it is as minor as I-9 Form corrections, or as major as an employee walk out in response to the audit.

The range of consequences from an audit will vary depending on the size of the company, the industry, the type of workforce, union involvement and a myriad of other factors. So an employer’s first task is to identify the worst possible outcomes of an audit based upon the employer’s individual company characteristics. The best way to do this is to sit down with experienced audit counsel who can assist in developing the worst case scenario list. If there is ever a time when mom’s age old advice, “prepare for the worst and hope for the best” applies, this is it.

Below, I discuss the top eight most common worst-case scenarios and provide suggestions as to how to begin to think about them and draft effective policies before an audit is undertaken:

1. I-9 Forms Contain Errors and HR Will Have to Request Assistance and/or Documents from Employees to Make Corrections: This is the most common scenario that employers encounter during an audit. Studies show that 20% or more of all I-9 Forms have technical or substantive violations. Once an employer discovers errors such as missing forms, missing signatures in Section 1 and missing documents in Section 2, the only way to correct these errors is to coordinate with the employee to provide the missing documentation, or actually physically correct the existing I-9 Form. This is a delicate situation and rife with opportunities for the employer to inadvertently commit immigration-related discrimination. The policy to address this situation must first involve specific training for company employees who will be working with employees to make the corrections. This policy must also contemplate all guidance that has been given by the Department of Justice Office of Special Counsel for Immigration Related Discrimination, and include specific, reasonable timeframes for employees to provide missing I-9 documentation. The company must also make a decision and put in writing what consequences the employee may face for failing to provide the missing documentation within the required time frame. Is termination appropriate in this situation? If not, what is the appropriate incentive to get the employee’s compliance? Whatever the company’s policy decision is, it is an absolute necessity that the policy be applied consistently in each and every instance.

2. Fraudulent I-9 Documents Are Identified During the I-9 Audit: This is one of the most troubling aspects of an internal audit. Finding out that multiple employees are using the same social security number or the same alien number leaves many employers with a sick feeling in their stomach. Employers will, naturally question the effectiveness of their entire I-9 process. Even without duplicate numbers in the system, an audit may reveal clearly fraudulent identity documents accepted as valid and copied during the I-9 process. In this instance the employer must first consider its existing employment policy, if any, on providing false information related to employment, and the attendant consequences. If such a policy exists, the employer should then revisit the policy in light of possible audit results to determine whether the policy is aligned with the company’s audit goals, and revise accordingly. If no policy is in existence, the employer needs to decide whether it will give employees who have provided fraudulent documents the opportunity to provide valid documents, or whether they will be terminated for providing false documents in the first place. This determination will depend upon a variety of company-specific factors such as size, type of workforce, industry, etc.. Whatever the decision, it should be made with the advice of immigration audit counsel and communicated to all employees prior to undertaking the audit.

3. Undocumented Employees Are Identified During the I-9 Audit: When a company has undocumented workers on staff, this fact will often come to light during an internal audit either through the identification of fraudulent documents (discussed above) or by voluntary employee disclosures during the process of correcting Section 1 mistakes or replacing missing documents. Many employees who voluntarily disclose their status will also self–terminate their employment by not returning to work the next day or the day after that. Others will admit that they were undocumented at the time of hire, and provide new I-9 verification documentation, often with a completely different identity. Before conducting an audit the employer should answer the question of whether it will terminate the employee in this situation or allow the employee to continue working under the new identity. Again, this will be a company by company determination and should be made with the advice of immigration and employment law counsel.

4. Individuals File Complaints with the DOJ Office of Special Counsel: There is no way to prevent an employee or former employee from filing a complaint with the Department of Justice Office of Special Counsel for Immigration Related Discrimination (OSC), but a company can ensure that the complaint will not turn into a full-blown investigation, by following citizenship status/national origin -neutral polices that are applied evenly to all employees throughout the audit process, and throughout its entire immigration compliance system.

The OSC is responsible for investigating and prosecuting I-9 document abuse, (requesting more or different documents than what the I-9 Form requires) citizenship status discrimination and national origin discrimination. It should be noted that the OSC has no jurisdiction to investigate or file suit when the complainant is an undocumented worker. Nevertheless, it has a well-publicized hotline for individuals to report instances where employers may have committed discriminatory acts related to hiring and termination as well as during the I-9 process.

Often the OSC will contact the company immediately and informally to find out what happened in the complainant’s situation. If the company has put into place sound policies and procedures and followed those procedures and is able to explain them to OSC and how they were applied in the situation at hand, there will be nothing for the OSC to investigate. In order to ensure that that communications with OSC are in the company’s best interest, it often makes sense to refer them to immigration counsel to handle. Often companies fear that involving “the lawyers” will somehow make a company seem (more) guilty to the government agency when in fact the opposite is true. When communicating with OSC attorneys, an immigration attorney’s ability to provide a succinct synopsis of company policy and how it was implemented for a particular employee is far more effective than an HR manager trying to explain and justify the company’s decision.

5. The Worst of the Worst Case Scenario Occurs (see Chipotle): In late 2010 Chipotle restaurants in Michigan were investigated by ICE for I-9 and undocumented worker violations. Since then the company has had to let go more than half of its 900 employees in the state. It has been subjected to numerous community protests, employee-organized walk-outs, and very bad press. In addition to dealing with the legal ramifications, including civil and possible criminal charges, the company has had to contend with the basic necessity of keeping its operations running in the face of such a devastating loss of its workforce. Only certain companies will have to prepare for such a difficult and complex result as that of Chipotle’s, but as they say, “You know who you are so don’t sweep the Chipotle possibility under the rug.” Before even undertaking an audit, the worst case scenario should be explained and discussed at the highest levels of company management. With open and frank discussions among company leaders, an emergency preparedness plan can be put into place, which includes clear lines of communication, pre-approved responses and the authority to quickly carry them out when necessary. Companies in this category should seriously consider hiring a PR firm as early in the process as possible to manage the communications to employees, the press and the public. The decision to undertake a self-audit must be made with the input of the General Counsel’s office and with the assistance of immigration audit counsel. Having the audit conducted by outside counsel should be seriously considered, as this will be the best way to protect the results under attorney-client privilege and ensure that no additional laws are violated during the course of the audit.

6. Responding to ICE Audits: All of the scenarios discussed above could occur during a self-audit or during an ICE audit. And while there would not be time to develop detailed policies and procedures during the 3 day period of time given to respond to an ICE audit, there will be time after the forms are submitted, to discuss with immigration counsel and company leadership on how to handle all of the possible outcomes of an ICE investigation. This is especially true for dealing with I-9 Form corrections, suspect I-9 documents and undocumented workers. Once ICE notifies the company of these deficiencies, time frames to respond are very short (normally 10 days), so it is best to anticipate the results of the investigation as much as possible and be ready to respond as soon as the ICE results come in.

7. Pre-Audit Communications to Employees: When doing an in-house audit, it is often prudent to let employees know ahead of time, and advise them of the importance of the project and that they may be asked to provide additional information or documentation. This simple act will cut down on employee uncertainty, unnecessary questions as to why one person was contacted for documentation and another wasn’t while emphasizing the need for timely and full cooperation. It may even be helpful to include information on the policies and procedures that have been put into place so employees will know what to expect.

8. The Last and Most Important Thing: Whatever policies and procedures are put into place, they must be followed consistently for each and every employee. This simple rule is not easy to follow, but the importance of it cannot be overstated. Staying true to pre-audit policy decisions will cut down on the possibility of immigration-related discrimination; reduce complaints to the Office of Special Counsel, eliminate confusion and distrust among co-workers and management; and provide strong back up for managers who may have to make some very difficult employment decisions.

Originally published by LawLogix Group Inc. Reprinted by permission

About The Author

Valentine Brown is a partner at Duane Morris LLP in the Employment, Labor, Benefits and Immigration Practice Group. She serves as global immigration law counsel to a diverse group of multi-national and domestic corporations and their employees, providing advice, compliance audits and representation to help navigate the intricacies of US and foreign immigration laws. Ms. Brown also represents individuals in all types of immigration proceedings, including persons of extraordinary ability; spouses, fiancées and children of US citizens; naturalization and political asylum applicants; as well as respondents in deportation and immigration appellate proceedings.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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