The Civil Rights Division of the Department of Justice (DOJ) and the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) have released joint guidance on how companies can conduct internal Form I-9 audits without running afoul of anti-discrimination and anti-retaliation provisions of the Immigration and Nationality Act (INA).

DOJ and DHS said in a statement that internal I-9 audits are becoming increasingly common as employers aim to ensure that their I-9 employment eligibility verification practices comply with federal law. The agencies highlighted the importance of conducting audits properly and offered recommendations for avoiding potential unlawful practices.

“Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason,” DOJ and DHS said in their guidance, released earlier in December. “An employer should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope, or selective nature.”

The DOJ-DHS I-9 guidance also contains information on:

  • How to communicate to employees when an I-9 audit is conducted.
  • How best to correct errors on I-9 forms.
  • How to address deficiencies related to E-Verify queries.
  • How to handle tips that an employee may not be work-authorized.
  • What to do if an employer learns an employee is not authorized to work in the U.S.

The INA requires employers to verify the work authorization of employees and prohibits employers from knowingly hiring unauthorized workers. DOJ and DHS stressed in their guidance, however, that singling out specific employees for additional scrutiny may be unlawful.

This guidance is part of a six-month interagency effort to enhance coordination among federal agencies responsible for enforcing immigration, labor and employment laws. The DOJ Office of Special Counsel for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the INA, while ICE enforces the employer sanctions provision.

BAL Analysis: The INA prohibits employers from employing workers when they have actual or constructive knowledge that the worker in question is not authorized to work in the U.S. Employers sometimes must walk a fine line between adhering to this mandate and inadvertently violating the INA’s anti-discrimination and anti-retaliation provisions. The DOJ-DHS guidance offers employers some helpful recommendations to effectively conduct internal I-9 audits while complying with their legal obligations. Those with additional questions should contact their BAL attorney.

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