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March-April 2012

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BLOGOSPHERE G POSTED BY Christine Mehfoud Form I-9 Audits: Risky Without an Expert iven the increased focus on employers' immigration-related compliance efforts, many companies are conducting Form I-9 audits. While all companies are well-advised to conduct a Form I-9 audit annually (or immediately if one has not been conducted within the last year), conducting one without the relevant expertise can do more harm than good. My favorite and, therefore, oſten repeated phrase regarding immigration compliance is, "Form I-9s are complex." That bears repeating in bold: Form I-9s are complex. compliance is, '"Form I-9s are complex.'" favorite phrase regarding immigration "My Form over Substance? The I-9 form is one of the most misunderstood federal government forms. The form is not a simple linear document with blanks that need to be completed. Rather, the I-9 form is an interactive process with numerous rules that must be followed (most of which do not appear on the face of the form). To Immigration and Customs Enforcement (ICE) and the Department of Justice, both of which investigate Immigration Reform and Control Act of 1986 and related I-9 violations, the procedure and manner by which the form is completed are just as important as the information provided on the form—it is the procedure and manner used that most oſten get employers into trouble.1 As a result, employers can get themselves into a heap of trouble by trying to correct mistakes on the form in an inappropriate manner. For example, I've heard many times, "Why can't we just populate the missing information from our HR system into Section 1 of the Form?" Well, only the employee can complete Section 1. Here's another one of my favorites, "The employee only completed List B and List C, but did not complete List A. We need to call her in and have her complete LISTEN AND LEARN: Shhhh—I Think I Hear a Silent Raid Coming. But I'm Not Worried, My I-9s Are Airtight Seminar Recording 12/8/2011 List A." Well, employers should not accept more than the required documentation for Section 2, and the employer is responsible for completing Section 2 of the form. These procedural missteps could subject the employer to significant penalties including, but not limited to, fines, debarment, and negative publicity. Some employers will correct a missing employee signature in Section 1 by creating a new I-9, oſten stating that the old I-9 is "out of date" and needs to be "redone." The employer then destroys the original I-9, leaving it no method to prove that it complied with the timing requirements of the form. Further, the employer has just made it clear to ICE that not only was the employer not fully compliant with the I-9 procedure when that employee was hired (which may have been as early as 1986), the employer is even worse at it now—not a good position to be in. HR Personnel Are Not Trained Auditors Unfortunately, these mistakes occur because most HR personnel responsible for the I-9 process have little to no formal training. While lack of Form I-9 training is extremely risky in today's enforcement environment, even more risky is allowing HR to conduct an audit of its own work. The use of independent, experienced auditors is key. Employers should tread carefully and ensure that they involve experienced immigration counsel in their auditing. Competent counsel can help get existing I-9s in order, and the process can serve as an excellent training exercise for the HR personnel. Christine Mehfoud is a lawyer with McGuireWoods LLP, and maintains a blog on immigration enforcement issues via Subject to Inquiry. The author's views do not necessarily represent the views of AILA nor do they constitute legal advice or representation. 1 See ICE Press Release, "Abercrombie and Fitch fined aſter I-9 audit" (Sept. 28, 2010), AILA InfoNet Doc. No. 10092962. MARCH/APRIL 2012 9 Immigration Chatter Around the Web

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