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Feds Give Employers Guidance on Form I-9 Audits

By Ephrat Livni, Esq. on January 05, 2016 | Last updated on March 21, 2019

Two major federal government agencies last month issued new guidance for employers on handling employment eligibility verifications for immigration purposes. The guidance highlights the Catch-22 employers face trying to comply with immigration law.

Employers are required to check prospective employees' ability to legally work here, according to federal law, but the government's guidance urges employers to ensure that their internal audits of this verification process are not discriminatory. This puts employers in a bit of a bind, according to the Washington Examiner.

Agency Rationale and Guidance

Noting an increase in internal Form I-9 audits among employers, the federal government urged care in the audit process. The Department of Justice's Civil Rights Division and the Department of Homeland Security's US Immigration and Customs Enforcement branch issued a joint statement reminding employers that they cannot use the audit process to discriminate.

Under the Immigration and Nationality Act (INA) employers must verify the work-authorization of their employees using the Form I-9 and are barred from knowingly hiring unauthorized workers. Here is where it gets a little tricky, according to critics.

The new federal guidance provides that employers in audits cannot inquire on the basis of a worker's "citizen status or national origin." Nor can they request specific documents or act based on tips or use the government's electronic verification system once the employee is hired, among other prohibitions.

So employers must ensure they only hire people eligible to work in the US but also have to avoid discriminating against workers based on national origin.

What Does That Mean?

While it might sound somewhat confusing, the guidance simply reminds employers that they must comply with federal law, which is not exactly news. The mandatory Form I-9 process must be followed, yet employers are still prohibited from discriminating against workers on the basis of national origin, and cannot use Form I-9 audits to fish for illegal workers.

One approach to this predicament then is just to ensure that best practices for I-9 Form process are put in place, eliminating the need for internal audits. The government agencies' guidance can be found here.

Talk to a Lawyer

If you are an employer confused about employment eligibility issues, or just want informed guidance on the government's new guidance, speak to a lawyer. Get help.

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