Worksite Enforcement Meeting Sheds New Light on Government I-9 Auditing Practices

[Editor’s Note: today’s blog is courtesy of Dan Brown of Berry Appleman & Leiden LLP]

A recent meeting between the American Immigration Lawyers Association (AILA) and Immigration and Customs Enforcement (ICE) provides some important insights into the agency’s views on a number of I-9 compliance issues that are crucial for employers.  AILA met with ICE HQ in late November to discuss best practices for I-9 corrections in light of the continuing waves of employer audits and inconsistent practice at various ICE offices. Although ICE did not commit to providing any of the specific guidance requested by AILA, the meeting  did provide some very useful information regarding the agency’s views regarding I-9 corrections, as well as insight as to why I-9 auditing procedures may vary from location to location. ICE also weighed in on the now-infamous Abercrombie & Fitch settlement for deficient electronic I-9s and provided updates regarding new government publications.

Importance of Auditing Sooner Rather than Later

ICE has repeatedly stated that employers must under the “good faith” exception be given an opportunity to correct technical and procedural I-9 violations within a period of not less than 10 days. In November’s meeting, however, the agency indicated that it views the good faith of an employer quite differently when corrections are made after ICE has come knocking on the door with a Notice of Inspection in hand. In these situations, ICE will be “tougher” on employers and are much more likely to charge fines for errors which would have been “overlooked” had they been corrected prior to the initiation of an ICE investigation. ICE essentially made it clear that the only violations that the employer will be offered an opportunity to correct by ICE post-investigation are technical ones, and then only because that is strictly what is required by law.

General Guidance on Correcting I-9s

Regarding corrections, the most important issue to ICE is whether or not the employer’s actions are reasonable. In order to make this assessment, ICE will look to see if the corrections indicate exactly what happened, when it happened, and perhaps even why, through a contemporaneous note. Many employers (through counsel) are already observing this practice by conspicuously noting and dating corrections in different color ink or through well-designed electronic I-9 systems. Explanatory notes are frequently written on the margins of the form or through electronic case notes. For many years, there have been widely disparate views on whether the employer can make corrections to certain fields in section 1 of the form (when, for example, employee forgets to enter his or her date of birth and the employer has independent knowledge of this date). In response to AILA’s inquiries, ICE indicated that it is very concerned with the possibility of employer fraud, so it does not feel comfortable with section one corrections being made by anyone other than the employee. However, when pressed by AILA, ICE agreed that if an employee provided authorization for the correction, and such authorization could be documented and attached to the I-9, then ICE may consider this acceptable when evaluated under the totality of the circumstances.

Auditing Standards are Likely to Remain Inconsistent

As ICE auditing continues to ramp up its I-9 enforcement activities, employers are likely to see all manner of procedures, fines, and corrective instructions from new auditors in the field. While ICE acknowledged that it would like to standardize practice as much as possible, the practical reality is that they have hundreds of auditors, many of whom are CPAs that have been trained to look for “exactness”, and the resources available to train them are limited. Bottom line: ICE is not going to second-guess or override the auditor’s decision in most circumstances. So how do you deal with instructions from an auditor that you feel are incorrect or unnecessary? First, ICE recommends that if an ICE auditor provides instructions for corrections, the employer should always ask for those instructions in writing and then note on the corrected I-9 that the actions were taken pursuant to ICE auditor instructions. So in another words, it’s always a good idea to “get it in writing,” especially when you’re being asked to do something that doesn’t sound quite normal. Second, and more importantly, you should work with counsel to resolve those instances where the auditor is incorrectly charging you with a fine or requiring you to make a correction for something very minor. AILA noted the following examples, taken from actual cases, of minor errors which should not require correction under a reasonableness standard:  the employee signing above the signature line in section 1; failing to check the attestation box for permanent resident, where the A number is recorded in section one and section two; noting initials for the issuing agency instead of spelling it out; recording company initials instead of spelling out the full name of the employer; recording list B info where List C belongs, and vice versa, where all required data is present; the employer signed his or her name but, in the space to print the name, put only his or her first name; and my favorite, missing one digit of the zip code.  ICE did not explicitly agree that these errors were minor, but indicated a willingness to look into these examples.

Electronic I-9 Issues

ICE also provided more information regarding the deficiencies in Abercrombie & Fitch’s electronic I-9 system. (This system, incidentally, was home-grown and not a commercially available product). Although the exact details will not be made public, ICE indicated that there were some basic but fundamental problems with the system, including I-9s with a blank section 1 and/or section 2; incorrect number of digits for the employee’s birth date (e.g., only 3 digits); missing signatures, etc. In most instances, the I-9s produced either had missing data or were never properly executed, so in ICE’s view they were clearly insufficient. The message to employers is clear: make sure you perform your due diligence when selecting an I-9 and E-Verify solution, because ICE will not let you hide behind the technology. Finally, ICE confirmed that it will continue to require the capacity for detailed audit information in order to consider an employer’s electronic I-9 system to be compliant, and that it intends to use the electronic audit trail to hold employers accountable for noncompliance.  As with paper I-9 auditing, electronic I-9 audit policies are truly all over the map, so it’s advisable to work closely with your vendor, and consult with immigration counsel, to ensure you can rapidly produce a detailed audit report that meets the most exacting — and unpredictable — ICE standards.