REPORT FROM THE U.S.—When faced with an I-9 audit, employers should have a comprehensive internal I-9 policy in place to reduce some of the burden caused by errors, experts said.
During the second part in a three-part webinar series hosted by LawLogix titled “Implementing and Managing a Compliance Strategy,” participants said if a company has a proper strategy in place, a well-trained HR staff and knowledgeable outside counsel, I-9 audits can be streamlined and efficient.
Because I-9 forms might contain errors, it’s important for employers to nip any problems in the bud before they’re exacerbated.
“It is so easy to take a significant problem and turn it innocently into a gigantic problem without outside counsel,” moderator Dan Siciliano, faculty director of the Rock Center for Corporate Governance at Stanford Law School, said.
Hire outside counsel
The idea of hiring outside counsel was a reoccurring theme throughout the webinar.
It’s challenging to stay current on all I-9 regulations, Siciliano said, adding “The use of counsel is so important.”
“No matter how good the internal people are, it’s always beneficial to have a second set of eyes,” said Paul Zulkie, managing principal at Zulkie Partners LLC, a law firm specializing in immigration law. An outside law firm can give a business an objective perspective and provide expertise on I-9 regulations.
Outside counsel, he said, can help spot a “pattern of errors that might not be seen internally.” Additionally, Zulkie said attorneys can offer practical guidance on how to deal with the U.S. Immigration and Customs Enforcement officials.
Some common errors that occur when self audits are done can make matters worse instead of better, he said. These problems include redoing all I-9 forms and throwing away originals; separating document copies from I-9s and throwing them away; making changes to I-9s without initialing and dating the forms; and inserting backdated information in I-9 forms.
An added benefit of consulting outside counsel deals with attorney-client privilege.
“When an attorney is doing the audit, it becomes information that can’t be disclosed,” Ilana Drummond, partner at San Francisco-based Jackson & Hertogs said. “If an employee does it, they can be deposed and be asked questions that cannot be asked of an attorney. The information the attorney gains in an audit can’t be questioned in any legal process.”
Key areas that make the difference
Common mistakes such as missing deadlines and using the wrong version of the I-9 form abound, panelists said.
By doing quarterly audits, a business can make sure they’re using the right form. Avoid pre-printed forms when possible, said John Fay, general counsel and VP of product development for LawLogix Group.
This is a good time to have employees engage in electronic I-9 software, which helps streamline the auditing process and shows patterns of errors, Drummond said.
Missing deadline, Fay said, is an error that can’t be corrected. Section 1 of the I-9 form should be completed on the first day of work; section 2 needs to be completed three days after the hire date, he reminded.
Although the I-9 form is a few pages, the training manual can be more than 60 pages. Fay said a compliance policy “isn’t something you want sitting on the shelf. This is a living, useful document. People doing I-9s have to read this and go through this to answer some questions, and put it to use,” he said.
Equally as important is ensuring the policy is applied consistently to all individuals. “If an individual can’t produce a document within three days, they are taken off the payroll and on unpaid leave,” Zulkie said. This shows you have a record of acting in good faith and complying with requirements. “If you have a policy, that policy should be applied consistently,” he said.
“Consistency saves you when you’re caught between a rock and a hard place,” added moderator Siciliano.
Dealing with ICE inspections
ICE no longer does random audits. “All audits are lead-driven,” Zulkie said, adding most leads come from federal, state or local agencies, or from anonymous sources. “If ICE shows up at your door, there’s a reason they’re there,” he said.
ICE agents arrive with a notice of inspection, and Zulkie said if an ICE official does show up, don’t give them any information and call outside counsel immediately.
“When ICE agents are there, they ask to take a tour of the facility,” he said. “Employers aren’t required to allow ICE to walk around their work site.”
Drummond recommends having I-9s separated so they’re easy to pull. Prepare a list of current and terminated employees with term dates, she said, so it’s easy to match I-9s that you have with an employee roster. Employers can run into problems, however, if they haven’t purged old documents.
When a person is terminated, the file can be purged either three years after the employee’s start date or one year after termination, whichever is later, Fay said.
If you haven’t purged documents, Drummond said to “mark those that should be purged—you shouldn’t be held accountable for it.”
Zulkie said audits can often seem like a fishing expedition. “You need an experienced attorney who has dealt with local ICE officials and knows where to pushback, which is not a bad thing,” he said.
With electronic I-9s, things are more complicated, as an electronic file means there is an inability to use forensic analysis to glean information using handwriting analysis from a hand-written document, Fay said.
“It can be burdensome only if you don’t do your due diligence upfront,” Fay added.