November 21, 2019

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Intra-agency Initiative Produces Guidance on Internal I-9 Audits, Worker Protections

The Department of Justice’s (DOJ) Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) teamed up to address common questions that arise when employers conduct internal reviews of their Forms I-9. The guidance is intended to help employers conduct their audits properly, and ensure they do not discriminate against employees during the audit process.

The guidance addresses audit scope, communication with employees, and correcting Forms I-9. It also covers how to handle common Form I-9 errors and omissions, and discusses E-Verify in the context of an internal audit. Unfortunately, the guidance is written with instructions for paper Forms I-9, rather than electronic Forms I-9, which are increasingly popular with employers. 

The guidance is available on both the ICE website, and on the DOJ Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) website

Similarly, the Department of Labor (DOL) posted guidance on preventing retaliation against immigrant workers. The DOL, DOJ, Equal Employment Opportunity Commission (EEOC), and National Labor Relations Board (NLRB) jointly released this document to clarify that worker protections apply to all workers, regardless of the workers’ immigration status, and that retaliation against workers who assert workplace rights is unlawful, regardless of the workers’ immigration status. 

This guidance is a result of a six-month intra-agency initiative to foster greater cooperation across government agencies in the I-9 audit space. The group overseeing this initiative, entitled the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws, is tasked with improving the effectiveness of investigations by ICE and the OSC. Employers may see increased enforcement activity next year following a dip in activity over the last six months.

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About this Author

Rebecca B. Schechter, Greenberg Traurig Law Firm, Northern Virginia, Immigration Law Attorney
Of Counsel

Rebecca Schechter focuses her practice on business immigration and compliance, representing multi-national corporations and companies, as well as individual clients. She has experience with all areas of employment-based immigration, particularly H-1B, L-1, O-1 and E-2 petitions, as well as outstanding researcher petitions and labor certification applications. Rebecca regularly assists GT clients with global immigration matters, including business and work visas to countries in Europe, the Middle East, Asia, and Latin America. She also works on state and federal I-9 and E-Verify...