An increase in I-9 audits over the past few years has spurred the Civil Rights Division of the U.S. Department of Justice (DOJ) to issue guidance for employers that are the subject of an I-9 audit. DOJ’s guidance shares best practices and steps employers should take to avoid charges of discrimination when faced with an Immigration and Customs Enforcement (ICE) I-9 audit.
DOJ suggests that employers do:
- Develop a transparent process for interacting with employees during an ICE audit, including communicating with employees that the employer is subject to an ICE audit;
- Provide workers with a reasonable amount of time to correct discrepancies in their records identified by ICE;
- Treat all workers in the same manner during the audit, without regard to national origin or citizenship status;
- Inform unions (if applicable) of the ICE audit and determine whether a collective bargaining agreement triggers any obligations;
- Inform employees from whom they seek information that they are seeing this information in response to an ICE audit;
- Communicate in writing with employees, describing the specific basis for the discrepancy and/or what information is needed from them; and
- Follow the instructions on the ICE notice and the instructions on Form I-9 when correcting errors on the forms.
- Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status;
- Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I-9 documents;
- Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain;
- Limit the range of documents that employees are allowed to present for purposes of the Form I-9; or
- Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.