On our last blog article, we quoted ICE as saying “We encourage self audits!” While this statement is true in more ways than one, unspoken are the hidden dangers of literally interpreting the word “self” in self-audits. Having the same individual(s) who are completing I-9 Forms conducting an internal I-9 audit can be wrought with challenges, as our guest attorney blogger Charles Kuck previously described in detail here.
In the field of risk assessment, auditing functions are traditionally reserved for an independent party to perform in order to provide an objective, fresh set of eyes upon review. An independent auditor should provide you with not only an objective perspective, but also expertise in assessing realistic I-9 compliance liabilities for your organization. Independent auditors can be sourced from other departments in your organization, including the risk department or legal departments. In the I-9 field though, the best-practice alternative is to use independent auditors who are experienced immigration (or employment) attorneys and not only consultants.
The daily grind of completing and reviewing I-9 Forms, as we all know, can seem like a paperwork minefield. The current one-page form (though technically it’s a five-page form if you include all the instructions) is accompanied by a 69 page instruction manual! During our numerous I-9 webinars, HR team members from all organizational sizes have asked a host of questions related to how to complete the I-9 form and how to remediate past mistakes. Even the FAQs on I-9 Central are not enough to address the myriad of questions.
Reviewing I-9 forms and creating a remediation strategy requires knowledge of your organization’s processes and the laws surrounding employment eligibility verification (and possibly E-Verify if your organization is enrolled). HR team members constantly seek outside expertise in this field because of the ever-changing rules and many “gray areas” in the law. Conducting an internal I-9 audit with only HR teams serving as auditors may leave gaps on how to remediate I-9 Form errors and how to structure a compliance strategy that complies with the agency’s enforcement guidelines. Where possible, budgeting for a formal independent audit will provide your organization a structured approach to auditing and compliance.
Larger organizations will typically have separate risk management departments and/or legal departments that can (or are required to) assume the responsibility of an I-9 audit, as it may be an extension of their existing roles at the organization. For publicly traded organizations and private organizations with shareholders, objectivity is a critical ingredient when evaluating corporate risks. A recent Forbes article highlights this need for independence in auditing.
In the I-9 arena, “consultants” are a difficult group to define. Because there is no controlling law that tells you who can qualify and become a consultant, absent stellar references, most organizations have little information to truly vet consultants. Some may have years of experience specifically in I-9 auditing while others may be new to the arena. There are no ethical or professional codes of conduct on how consultants may behave and what duties they owe to their clients, other than by contract. Some may have sophisticated operations and even employ attorneys. However, state laws do not categorize consultant groups as law firms. In fact, in many states, attorneys may not form a law practice with non-attorneys. As a result, consultants who are not attorneys who dispense legal advice may be inadvertently practicing law without a license. Nicole Kersey, Attorney and Managing Director of the Immigration Compliance Center at Seyfarth Shaw LLP, confirms:
While consultants can point out I-9 errors and may be able to offer suggestions for correcting errors, only attorneys can provide legal advice. I-9 compliance is in fact a very complex area of immigration law. For the most part, employers want and need legal advice rather than mere suggestions. Employers should ensure their auditors understand how to legally go about correcting I-9 errors. This is why most employers need to know the instructions they are getting have a firm basis in the law.
Still, seasoned and well-respected consultants do render a cost-effective approach to I-9 auditing by providing valuable resources so long as they leave the legal advising to experienced attorneys. This is usually the recommended arrangement where consultants can play a pivotal role. If consultants are an option, it’s therefore important to ensure they have solid, reliable references.
Every day, more and more attorneys are experiencing the complexities of I-9 and the rules and laws governing this practice area. This is why it is important for organizations to ally with experienced attorneys who have been advising on I-9 compliance for some time. In general, attorneys are bound by rules and laws governing their conduct and the responsibilities they owe to their clients. Organizations that retain outside counsel also benefit from attorney-client confidentiality. Ms. Kersey also reminds us of the additional benefits employers receive when retaining experienced counsel, “Attorneys who have represented employers in ICE inspections can also offer practical guidance about what ICE investigators are looking for and expect to see after a voluntary audit.”
In conclusion, if your organization is preparing for a “self” audit of your I-9 forms, consider all of the above carefully before proceeding.