Is everyone in your US office legal to work in the United States? Are you sure? Could you survive an audit of your documentation? This is called an I9 audit. Is it possible that Immigration officials could show up at your door and ask to see your documentation? Yes, and Ashley Kaplan, Senior Employment Law Attorney at ComplyRight, helped me with some tips for making sure you don't need to be nervous when ICE (Immigration and Customs Enforcement) shows up at your door.
Location and industry matters
While any business in any location could technically be subject to a surprise audit, Kaplan says that if you're in a sanctuary city or work in construction, agriculture, a restaurant, or hospitality, you're more likely to be audited.While every business needs to be prepared, if you're in one of these, your chance of a knock at the door is higher.
Double check your paperwork
Kaplan says, "It's imperative to use the correct (NEW) I-9 form and maintain records. Employers should consider using E-Verify, and conduct periodic internal audits so they can take corrective action before ICE comes calling. In some cases, employees' authorization documents must be re-verified several months or years after the hire date." That means it's not a one-and-done bit of paperwork.If you haven't performed an internal audit recently, it's time to do so now.
What about new hires?
If a new hire hands you a document that you aren't 100 percent sure about, don't panic. Kaplan says, "Employers are not expected to be document experts in the validity of immigration documents. The standard is reasonableness. Specifically, you must accept documents that reasonably appear to be genuine and to relate to the person presenting them. You should check, for example, that the names match (e.g. the name on the Social Security card is the same as the name on the state driver's license), and that the photo on the document presented appears to be the same person standing before you presenting the document. Some common sense indicators that documents may not be genuine include mismatched font or poorly placed type, printing above the surface of lamination, typing in an unusual typeface, or misspellings on the document."
Keep your audit non-discriminatory.
You want to make sure all your employees are legal to work in the United States, but you've known Karen since kindergarten, so no need to check her, right? And Bob. I mean, his name is Bob and he's from Iowa so no need to double check him either. But, Jose? He has an accent and his native language is Spanish, so...
You can't think that way. You can't use an I9 audit to target or discriminate against any group of people. You can't use it as a way to get rid of a problem employee (well, she keeps complaining, let's double check her paperwork). If you're going to do an audit, do an audit of everyone. Not just people you suspect could be illegal.
Additionally, Kaplan says, one way employers inadvertently discriminate illegally is by demanding specific documents, usually a social security card or green card. While those are acceptable forms of identification, they are not the only forms. A birth certificate combined with a voter registration card is unusual but allowable, for instance. There is a complete list on the I9 form itself, which you can download here.
Protect your rights.
Kaplan says, "ICE investigators can show up at a business unannounced with a Notice of Inspection, seeking to review I-9 forms for current employees. Employers can limit the scope of the investigation and protect their rights through best practices such as training a single employee to act as point person with ICE, limiting the records they turn over, making copies before turning over originals and limiting access to non-related personnel data."
If an ICE inspector shows up, call your employment attorney immediately. If you don't have an employment attorney, get one, today.