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Form I-9 Remediation in a Private Audit: The Bridge Over Troubled Waters

[Editor’s Note: today’s blog is courtesy of Charles M. Miller, co-author of the ABA’s new best-selling book Immigration Compliance Auditing for Lawyers]

U.S. employers have had continuing troubles with the Form I-9 since its delayed roll out in September 1987.  Employers have used the I-9 to verify the identity and employment authorization of every person hired after November 6, 1986.  While Homeland Security deemphasized civil enforcement of the IRCA employers sanctions laws in the years following 9-11, it swung the pendulum back to emphasize high profile criminal investigations beginning in 2006.  In 2009, however, ICE worksite enforcement investigations changed focus to administrative inspection of critical infrastructure employers, and in 2010 to America’s largest companies.

A decade later, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA)was passed to strengthen enforcement efforts, but to allow employers to correct deficient I-9s that were the products of innocent, but deficient recordkeeping.  On the one hand IIRAIRA featured an amendment that reduced the number of documents that employers could accept to eliminate fraud.  On the other hand, the bill contained a good-faith defense against technical or procedural Form I-9 paperwork violations for employers. This amendment allows employers ten days after agency notice to effect good-faith corrections avoiding the substantive violations penalties.  In 1997, the INS brought out the Virtue Memorandum which ICE continues to use as guidance to ICE agents and the public as to the cure of the technical and procedural violations that plagued employers.

While the Virtue Memorandum remains viable agency policy, in October 2011 ICE began to discuss with AILA’s Verification Committee another policy toward employers who, after conducting a private audit,  remediated  (cured or corrected)  I-9 errors in good faith,  prior to the time that the agency initiated an administrative inspection through a Notice of Inspection (NOI).

This policy represents a potential departure from the agency’s previous interpretation of the IIRAIRA good faith defense. The agency previously had taken the position that substantive paperwork failures could not be corrected. This would bring ICE policy in line with Department of Justice OCAHO administrative decisions, which attach weight to remediation measures for mitigation of damages, application of the general good faith defense and to begin the running of the statute of limitations for certain penalty provisions.

In our American Bar Association book Immigration Compliance Auditing for Lawyers, Marcine Seid, Chris Stowe and I, provide a remediation analysis to be used by attorney auditors employed in a private immigration audit.  The auditor recommends remediation for substantive and technical or procedural I-9 paperwork failures and knowingly hiring or continuing to employ unauthorized employee violations.  The external auditor additionally recommends remediation which extends to all potential violations under the Immigration and Naturalization Act. This remediation opportunity is necessary to mitigate potential penalties and to begin the running of the statute of limitations. The ABA book contains guidance for the remediation of substantive and technical paperwork violations, missing I-9s, as well as knowing hiring and continuing to employ violations.  This recognizes that the role of the private attorney auditor is broader than the ICE forensic auditor or special agent, looking to mitigation of damages and the running of the statute of limitations.

The ICE IMAGE program has also included the private audit as a necessary part of its new Express program, and has encouraged membership by mitigating or waiving potential penalties where the total percentage of violations is less than 50%. The combination of private audit remediation and this penalty amnesty makes for an attractive inducement.  We will keep you informed of our efforts to seek IMAGE agreements that would allow the private audit described in the ABA book to replace an ICE inspection as a condition of Express membership.   That would truly represent a bridge over troubled waters.

Human Resources Today