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Monday, December 14, 2015

Departments of Justice and Homeland Security Announce Joint Guidance to Employers on Internal Form I-9 Audits

The Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) announced today the issuance of a joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

Under the Immigration and Nationality Act (INA), employers are required to verify the work-authorization of their employees using the Form I-9 and are prohibited from knowingly hiring unauthorized workers.  Employers seeking to ensure their Form I-9 practices comply with federal law are increasingly conducting internal audits of their Forms I-9.  To ensure that these audits are conducted properly and do not discriminate against employees, ICE and OSC have collaborated to issue formal guidance on the topic.

“Employers have a responsibility to ensure their Form I-9 practices are in compliance with the Immigration and Nationality Act,” said Director Sarah Saldaña of ICE.  “If used properly, audits can be an effective tool to achieve this end.”

“Today’s guidance provides critical information for employers to ensure that their internal audits of I-9 forms are conducted fairly and accurately, without discrimination or retaliation against their employees,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division.  “Without clear and effective guidelines, internal audits can create barriers to employment for work-authorized individuals.”

The joint guidance was developed by the two agencies with significant input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country. 

This guidance is part of the six-month action plan of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws (interagency working group).  The interagency working group’s goals are to enhance coordination in those cases where federal responsibilities to enforce labor, employment and immigration laws may overlap; to ensure that workers who cooperate with labor and employment enforcement may continue to do so without fear of retaliation; to ensure that unscrupulous parties do not attempt to misuse immigration enforcement or labor laws to thwart or manipulate worker protections or labor and immigration enforcement; and to ensure the effective enforcement of these laws.

Among other things, the guidance provides employers with information regarding the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate.  The joint guidance can be found on DHS’s website https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf and on the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) website http://www.justice.gov/crt/file/798276/download

ICE is responsible for enforcing the employer sanctions provision of the INA, and OSC enforces the anti-discrimination provision of the statute.  For more information about protections against employment discrimination under immigration laws, call OSC’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired), call OSC’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired), sign up for a free webinar at www.justice.gov/crt/about/osc/webinars.php, email osccrt@usdoj.gov or visit the website at www.justice.gov/crt/about/osc.   

15-1525
Topic: 
Civil Rights
Immigration
Updated August 22, 2016