Internal I-9 Audits: Alternative Documentation

Periodic internal I-9 audits are considered an employer “best practice” by Immigration and Customs Enforcement (ICE). Before conducting an internal I-9 audit, however, employers need to understand how to address a range of issues likely to be identified.

In a Technical Assistance Letter (dated October 23, 2015), the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) discussed whether an employer may lawfully request alternative documentation for employment verification purposes if, during the course of an internal audit, an employer finds documentation that does not appear genuine. Particularly where affected employees share the same national origin, OSC was asked whether requesting follow up from employees implicates the Immigration and Nationality Act’s anti-discrimination provisions (INA Section 274b, 8 U.S.C. 1324b).

OSC advised that in the context of an internal audit, so long as the employer treats all similarly-situated employees the same, regardless of citizenship status or national origin, an employer’s request for alternative documentation likely would not violate the anti-discrimination provisions of the INA. OSC warned employers against basing selection of I-9s for review on employees’ citizenship status or national origin. OSC also stated that an employer should apply the same level of scrutiny to its review regardless of the employees’ citizenship status or national origin.

Because the employment verification requirements under the INA must be balanced against the INA anti-discrimination provisions, employers must be mindful of all requirements before conducting an internal audit and should consult with counsel prior to initiating or relying on an I-9 review.