Enforcement Advisor

Worksite Enforcement, Employer Compliance
& Business Immigration News
Volume 5, Issue 2 February 2012
In This Issue
E-Verify Self Check Now Available Nationwide
DOJ Issues Best Practices Guidance for Employers Facing I-9 Audits
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E-Verify Self Check Now Available Nationwide
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Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in all 50 states, Washington, D.C., Guam, Puerto Rico, the U.S. Virgin Islands, and the Commonwealth of Northern Mariana Islands.

  

Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas launched Self Check in March 2011 with plans to expand it nationwide within one year, a goal that has now been reached.

 

Since the launch, approximately 67,000 persons have used Self Check to access their employment eligibility records and to learn how to correct potential record discrepancies prior to the hiring process. USCIS expects participation to increase dramatically now that the service is available nationwide.

Self Check is the first online E-Verify service offered directly to workers. Available in English and Spanish, Self Check allows individuals to enter the same information into Self Check that employers enter into E-Verify.

 


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DOJ Issues Best Practices Guidance for Employers Facing I-9 Audits 

 

In years past, the U.S. Immigration & Customs Enforcement (ICE) performed worksite raids to discourage employment of unauthorized workers. In 2009, ICE shifted its focus from arresting undocumented workers to auditing and investigating employers suspected of violating immigration laws. Through I-9 audits, ICE has mostly targeted industries known for employing large numbers of undocumented workers, such as the construction, agriculture and hospitality industries. Industries whose workers have access to sensitive government information, such as the financial services, healthcare and transportation industries, are also prone to audits.  

 

No employer or industry, however, is immune from I-9 audits. While employers may enforce practices to deter unauthorized employment, they must not take action that amounts to discrimination or a form of I-9 document abuse. Recently, the Department of Justice, Office of Special Counsel for Immigration Related Employment Practices (OSC) issued guidance to employers facing an ICE I-9 audit or conducting their own I-9 audit.

 

Titled, Employer Best Practices During Worksite Enforcement Audits, the guidance lists the following Do's and Don'ts:

 

DO:

 

1. Be transparent when interacting with employees during the audit, including communicating to them that the employer is subject to an ICE audit.

 

2. Give all employees a reasonable amount of time to correct discrepancies in their I-9s, and treat all workers the same without regard to national origin or citizenship status, so that those with similar discrepancies have the same timeframes and choice of documents to present. 

 

3. If a union represents the employees, inform the union of the audit and determine whether this triggers additional obligations.

  

4. Inform employees from whom you seek specific information that you need the information to respond to an ICE audit.

 

5. Provide written notice to affected employees, describing the specific reason for the audit and what exactly you need from them. When correcting defects, follow the instructions on the ICE notice and Form I-9 instructions.

 

DON'T:

 

1. Selectively verify certain employees based on their national origin or citizenship status upon receiving an ICE Notice of Inspection.

 

2. Terminate or suspend employees without providing them notice and a reasonable opportunity to present valid documents.

 

3. Require employees to provide additional evidence of employment eligibility or more documents than ICE is requesting.

 

4. Limit the range of documents employees are allowed to present to meet the I-9 requirements.

 

5. Treat employees differently at any point because they look or sound foreign or based on assumptions about whether they are authorized to work in the U.S.

 

The OSC's guidance does not serve as an excuse for employers to continue hiring undocumented workers. Once the employee receives enough time to present acceptable documents and is unable to do so, he or she must be terminated in order for the employer to comply with the law. Employers, however, must not rely on more stringent rules than the I-9 process requires in their effort to respond to ICE audits or to prevent the employment of unauthorized workers. Otherwise, they could face a discrimination suit by the OSC, which enforces the anti-discrimination provision of the Immigration and Nationality Act.  
 

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