This is Part IX of our I-9 blog series, which explains how employers can avoid audit by ICE. In order for employers to reduce the chances of an I-9 audit, employers should know best practices and how to protect themselves.
Best employment practices:
1. Develop a plan to self-audit.
2. Communicate to workers that an Notice of Inspection (NOI) has been issued.
3. Establish a process for connecting with employees during the audit. Communicate:
• With employees that the employer is subject to an ICE audit, or
• That the employer has received a notice.
4. Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE.
5. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I‐9 documents to present.
6. If the employer’s workers are represented by a union, inform the union of ICE’s audit and determine whether a collective bargaining agreement triggers any employer obligations.
7. Inform employees from whom the employer seeks specific information, that the employer is seeking this information in response to an ICE audit.
• Communicate in writing with employees from whom the employer is seeking more information in response to the ICE audit.
• Describe the specific basis for the discrepancy in the employee’s record.
• Detail what information the employer needs from the employee.
8. Follow the instructions on the ICE notice and the instructions for the Form I‐9 when seeking to correct Form I‐9 defects, including the Lists of Acceptable Documents and the anti‐discrimination notice.
9. Employers should consider compliance planning before they receive a notice from ICE. Regardless of the size of a company, receipt of a NOI should be taken seriously, particularly if the employer has been targeted before.
10. Receipt of a notice should trigger a consultation with an immigration attorney for guidance through the ICE inspection process.
11. Steps to take immediately:
• Notify the management and executive teams of the audit.
• Notify or retain experienced immigration counsel.
• Gather I-9s and supporting documentation.
• Employers should immediately engage experienced immigration counsel to evaluate current processes and procedures and address all of the grey areas in the law and to correct and remedy issues raised by a self-audit.
• Develop policies, documentation, and training to ensure that all the employees are aware of the gravity of collecting, maintaining and auditing I-9 forms.
12. If the employer has many worksites and a large workforce, the employer should consider an electronic system that will alleviate many I-9 concerns by preventing mistakes, standardizing practices/procedures, and guiding employers on the proper procedure for requesting I-9 documentation.
1. Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status established in the receipt of an ICE NOI.
The University of California, San Diego (UCSD) Medical Center committed document abuse when it discriminated against non-US citizen employees by requiring them to produce specific List A documents, but did not ask for the same specific documents from US citizen employees. USCD Medical Center was charged with continuing a practice of document abuse according to U.S.C. § 1324b(a)(6), and adopting a ‘knowingly’ and intentionally discriminatory policy toward non-citizens.
2. Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I‐9 documents.
John Jay College was found guilty of discriminatory treatment of certain individuals in the employment eligibility verification process. Between 2004-2008, an employee was asked to produce her Employment Authorization Document (EAD) and green card for employment eligibility re-verification. However, on January 30, 2008, she was told her EAD had expired. On the same day, John Jay College refused to accept her Social Security card and driver’s license to reverify her employment eligibility. Again on January 30, the college requested that the employee provide an unexpired EAD or green card. The employee was fired on January 30 without the reasonable opportunity to produce documents that would validate her authorization to work.
3. Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring the employer to obtain.
The company Life Generations Healthcare, LLC committed discriminatory conduct against its non-US citizen employees. Life Generations required non-US applicants, who were both naturalized and work-authorized, to compile more or different documents than needed on the Form 1-9. Life Generations Healthcare, LLC was found guilty of unfair immigration-related employment practice and in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(l) and (a)(6).
4. Limit the range of documents that employees are allowed to present for purposes of the Form I‐9.
In a case against the Maricopa Community Colleges, it was found that the colleges were in violation of document abuse and found guilty of a practice of discrimination in the hiring process. The colleges required new non-US hires to complete an internal non-US citizen employee tax data form, or “the Form”. The Form required new non-US hires to produce certain documents in order to verify employment eligibility. The colleges required only non-US citizen applicants to comply with the specific documentation of the Form.
5. 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 US.
The company Home Care Giver Services, Inc. was found guilty of the anti-discrimination with regard to discrimination against an employee based on her national origin and accent. The employee was subjected to verbal harassment, including insults about her accent and Hispanic culture. Home Care Giver Services knowingly and intentionally committed national origin discrimination against the employee when it terminated her based on her national origin. Respondent’s actions constitute an unfair immigration-related employment practice in violation of 8 U.S.C. § 1324b(a)(1)(A).
6. Set different employment eligibility verification standards or require that employees, because of their national origin and citizenship status, present different documents.
The University of California, San Diego Medical Center< case is an example of this practice. Non-US citizens were unnecessarily asked for specific List A documents. 7. Each employee must be allowed to choose the documents that he or she will present from the lists of acceptable Form I-9 documents. The Maricopa Community Colleges case is an example of this practice. Non-US citizens were allowed to only present certain documents that the colleges chose. 8. Request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen. The company Mar-Jac Poultry, Inc. was found in violation of the anti-discrimination provisions of the INA with regard to its systematic pattern and practice of treating non-U.S. citizens differently than U.S. citizens in the employment eligibility verification process. Specifically, Mar-Jac Poultry required non-citizen applicants to show immigration documents issued by the U.S. government before considering them for employment. Mar-Jac Poultry was in violation of the anti-discrimination provision of the INA, 8 U.S.C. § 1324b(a)(6) and document abuse in violation of 8 U.S.C. § 1324(a)(6).
9. Refuse to accept a document, or refuse to hire an individual, because a document has a future expiration date.
The Life Generations Healthcare, LLC case is an example of this practice. The company refused to accept an employee’s EAD because it had a future expiration date.
10. Request that, during re-verification, an employee present a new unexpired EAD if he or she presented one during initial verification. For re-verification, each employee must be free to choose to present any document either from List A or from List C.
The John Jay College case is an example of this practice. John Jay College asked an employee to produce both an EAD and green card for re-verification.
11. Limit jobs to U.S. citizens, unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local government contract. On an individual basis, the employer may legally prefer a U.S. citizen or non-citizen national over an equally qualified alien to fill a specific position, but the employer may not adopt a blanket policy of always preferring citizens over non-citizens.
Next Week : Part X: Managing I-9 in Mergers and Acquisitions
Part XI: Correcting I-9
Part XII: Storing/Retaining I-9
See you in my next blog.
Nalini S Mahadevan, JD, MBA
Copyright 2012. All rights reserved.
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