Pre I-9 Audit Planning: Prepare for the Worst and Hope for the Best (Part 1 of 2)

[Editor’s Note: Our two-day blog series is courtesy of Valentine A. Brown, Partner at Duane Morris, LLP.]

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.

[Editor’s Note: This concludes Part 1 of our two-day blog series. Stay tuned for Part 2 where Ms. Brown delivers five more worst-case scenarios and suggestions on navigating through those situations.]