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Transcript of Creation and Implementation of an Internal I-9 Audit...
Creation and
Implementation of an
Internal I-9 Audit Program
NC CUPA-HR 2016 Spring Professional
Development Workshop
April 8, 2016
Contact Information
• Jill Blitstein, Manager of International Employment (IE)– 919.515.4518, [email protected]
• Stephanie Hines, Specialist in International Employment– 919.513.7525, [email protected]
• http://www.ncsu.edu/human_resources/intemployment/
• Main number: 919.513.3338
• IE is part of Human Resources at NC State, and is responsible for I-9 and E-Verify monitoring and compliance for the entire university
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Learning Objectives
• Latest guidance from Immigration and Customs
Enforcement (ICE) and the Department of Justice (DOJ)
on conducting internal I-9 audits
• Practical tips on various compliance strategies
(including mandatory training)
• Impact of an electronic I-9 system and how it changes
the monitoring and reporting process
• Example of an interactive “real world” audit that has
successfully spread the compliance message in a non-
threatening and engaging way
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I-9 Internal Audit Guidance
• In 2015, the Office of Special Counsel (OSC) for
Immigration-Related Unfair Employment Practices (of
the U.S. Dept. of Justice - DOJ) and the U.S.
Immigration and Customs Enforcement (ICE) unit of the
Dept. of Homeland Security (DHS) released “Guidance
for Employers Conducting Internal Employment Eligibility
Verification Form I-9 Audits”
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I-9 Internal Audit Guidance
• This is a MUST READ document for any institution
planning an internal audit!
• Six pages of Q&A format information
• Biggest takeaway: internal audits must not be
discriminatory or retaliatory themselves – criteria used
for own internal audit could itself potentially become
subject of federal audit or sanctions
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I-9 Internal Audit Guidance
• Several highlights (read entire document!)
– Clearly define purpose, scope and protocols first
– Notify employees in writing of the above
– Correcting errors: only employee corrects Section 1,
and only employer corrects Section 2 or 3• No white-out, erasing content or back-dating
– When to complete newest version of the Form I-9
– Employer may NOT request specific documents to
correct (or complete new) I-9 form
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I-9 Internal Audit Guidance
• Several highlights (continued)
– Cautions employers against requiring all employees
to complete new forms, if not justified – could raise
discrimination concerns
– E-Verify related guidance
– Must provide “reasonable” amount of time to allow
employees to provide documentation for I-9
– Social Security Number Verification Service (SSNVS)
is NOT to be used as ANY part of I-9 process
• See also January 2016 letter from OSC/DOJ
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Discrimination Violations
• Office of Special Counsel monitors and prosecutes most
I-9 discrimination violations, including citizenship and
national origin discrimination, document abuse,
retaliation
• Some violations are also under the jurisdiction of the
EEOC, based on Title VII of the 1964 Civil Rights Act
• There are court cases where employers owed back-pay
and fines for specifying which documents new hires had
to produce for the I-9 process
– Could also be true in internal audit context based on guidance
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Example of Discrimination Settlement
• OSC reached settlement agreement with Macy’s in June
2013:
– Macy’s agreed to pay civil penalty of $175,000 and
back pay of $100,000 to compensate individuals who
suffered economic damages because of Macy’s
employment eligibility reverification practices
– Macy’s was also subject to extensive monitoring by
OSC and reporting requirements for 2 years
– Fine line between ensuring proper work authorization
and avoiding discrimination
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ICE Audit and Compliance Trends
• Creation of Employment Compliance Inspection Center
(ECIC) to process I-9 audits of large employers in 2011
• Continued increase in audit and enforcement activities
– In FY 2013 (latest year available), ICE served 3,127 Notices of
Inspection (NOI) to employers
– Results of NOI’s: 637 Final Orders worth over $15.8 million in
administrative fines
– ICE made 452 criminal arrests tied to worksite enforcement
investigations; of these, 179 were owners, managers,
supervisors or human resources employees!
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The NC State Experience
• Last federal I-9 audit: 2007
• No penalties, but were required to create and implement
an I-9 training program for campus
• First we did a sample I-9 audit on new I-9s coming to
Central HR in early 2008
– Decentralized originally, but then we centralized the I-
9 process for better control around 2006/2007
• Then we audited all I-9s in Central HR in 2009
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The NC State Experience
• Audit strategy in 2009:
– Reviewers were trained by IE, and were a select,
small group from Central HR only
– Reviewed every single form we could find
(approximately 16,000 over several months)
– Corrected what we could, and then reached out to
employees to correct or redo I-9 forms as necessary• Did not have rigid timeline for completion of new or corrected
forms, but monitored units for compliance
• Not a fun process – but was necessary
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The NC State experience
• In 2008 we created mandatory training for all HR people
processing I-9s across campus (and out in the
counties), based on first sample audit
– Approximately 400-500 people completed I-9 forms on behalf of
the university before 2012: way too many, with no training
– Created official University Regulation which required training by
IE before anyone was authorized to do I-9s on our behalf
• Had support of Administration, Office of General Counsel
• EVERYONE doing I-9s was required to attend: ouch!
• Training focused on the law, and then the process
– Created our “best practices” for Form I-9 completion
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The NC State experience
• Requested campus units specifically include I-9
responsibility in employee workplans
• Created email to send to supervisors to confirm I-9
training attendance by employees
• Provided immediate feedback to people completing
Section 2 when mistakes were noticed during review
– IE audited EVERY paper I-9 form upon receipt, from 2008-2012
• Process improved, but…started looking at electronic
systems to further increase compliance
– Major issues: lack of timeliness, foreign national document
confusion, incomplete forms
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Lingering concerns about compliance
• Possible penalties for I-9 noncompliance (mistakes, omissions, patterns of errors):
– Monetary fines/penalties
– Negative publicity
– Possible jail time, if government finds a pattern of discrimination or violations
– Time and expense of dealing with government audit
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I-9 Civil Penalties
• Failing to comply with Form I-9 requirements:
– Failure to properly complete, retain and/or make
available I-9 forms for inspection: $110 - $1,100 for
each I-9 form violation occurring after September 29,
1999• Proposed new fines: $500 - $2,000 per violation!
– Document abuse: currently $110 - $1,100 for each
person discriminated against after September 29,
1999
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I-9 Civil Penalties
• Recent decision from the Office of the Chief
Administrative Hearing Officer (OCAHO) – DOJ
– USA v. Anodizing Industries, Inc.
– May 24, 2013 (Case # 12A00030)
– OCAHO reduced the fines assessed to company by
ICE, but specifically noted that “failure to prepare an
I-9 in a timely fashion…is not only a substantive
violation but also a serious one...”.
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Electronic I-9 System considerations
• Concerns about penalties and continued compliance
issues led to transition to electronic (“smart system”)
solution for I-9/E-Verify compliance process
• Biggest issues: COST, COST and COST!
• Reviewed several systems (demos, etc.)
• NC State was able to piggy-back on RFP process of
UNC-Chapel Hill to get best price on same system
– Also used by UNC-Charlotte, Western Carolina University
• We were able to use one-time funds to purchase system
– Had to also find ongoing support for $3 fee for every I-9 form
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I-9 Process at NC State
• NC State University moved to an electronic I-9 and E-
Verify system on August 1, 2012
• Only licensed (and trained) Users can access system
and complete electronic I-9 forms on behalf of NC State
– NO paper I-9s at NC State since 8/1/2012!
• Users were selected by College/Unit HR or Business
Officers and were/are required to attend I-9 and E-Verify
(re)training and I-9 system training
– We purchased a limited number of User licenses to be used
over the lifetime of the product (with the option to buy more)
– Once a license is issued, it can never be reused again
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Electronic I-9 System
• Benefits:
– Decrease in mistakes with a “smart system”: literally cannot
make certain errors anymore
– Ability to monitor status of I-9s in electronic flow on a
“dashboard” for easy viewing
– Can receive feed from HR system, so new hires can be (mostly)
timely fed into the I-9 system (but beware of payroll lockout!)
– Can handle remote hires via temporary access by others
– System can send reminder emails about expirations and
required reverifications with some customization
– CAVEAT: just a tool; still requires human inputs and daily usage
and monitoring – system cannot compel timely completion!
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Monitoring I-9 issues
• Can see I-9 and E-Verify process in “real time”
– Which employee has completed Section 1 but still
needs to complete Section 2; which employee hasn’t
even completed Section 1; which employee has 90
days to produce SSC after showing receipt; etc.
• Most systems automatically send I-9 data to E-Verify
and provide an interface with that system
• Can always see I-9, and view/print pdf
• Every action is tracked, date & time stamped
• Can change User access, if limitations needed
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Reporting Capabilities
• For the Users/Units, the dashboard is really the only
“report” they need to achieve and monitor their own
compliance
• Admin Users can create unlimited number of reports on
various fields as desired
• Excellent real-time information - but also creates
potential vulnerability in a federal audit
• NC State specifically uses reporting feature to track
timeliness completion rates, User data
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Internal Audit of I-9 System Users
• NC State wanted to inspire better compliance and demonstrate seriousness of a real audit
– Decided to audit I-9 Users like ICE would: give 3 days notice, assess potential fines, discuss mitigating circumstances and good faith efforts
– Had senior HR/Business Officer schedule required meeting for unit I-9 Users without mentioning audit
• IE sent audit notice email 3 days in advance, and provided list of names of I-9s to be audited
• We chose 6-7 forms with issues to review as a group
• We provide estimated fine ranges – THAT gets attention!
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Internal Audit of I-9 System Users
• IE follows a script: we discuss what a federal audit would look like, then go through the I-9s with issues and tally the potential fine ranges– We remove the User names from Section 2 of I-9s
• We review the unit’s system dashboard together, and discuss the available resources to Users for assistance with I-9s at any time
• We distribute certificates to Users at the end: ‘I survived the I-9 audit of 2015-2016’
• We send follow-up email to review issues, but also highlight positive I-9 aspects and successes
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Internal Audit of I-9 System Users
• This audit requires no participation from employees who completed Section 1– Any issues have already been corrected at the time of (or
immediately after) completion, before this internal audit
• I-9s are selected for this audit based on type of I-9 mistake, NOT based on nationalities
• Units are selected for audit based on issues
• Users are first shown ‘clean’ I-9 form and we encourage them to find mistake(s) as a group; next slide has the errors circled and we discuss what was incorrect and how to avoid that mistake in the future
• We have received VERY positive responses afterwards!36
Summary: lessons learned
• NC State has conducted several I-9s audits (both paper
and electronic) in the last 8 years, and in our
experience:
– More errors are made on paper forms
– Perfect timeliness, while always the goal, is seldom consistently
achieved, even with electronic tools
– Centralization is very helpful, if feasible; limiting the number of
people who complete I-9s is even better
– Constant training and helpful resources are a MUST
– Electronic system has been huge step forward for us, but the
system is only as good as the people using it!
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Reference Page
• HR International Employment I-9 information: http://www.ncsu.edu/human_resources/intemployment/i9.php
• HR International Employment I-9 FAQs: http://www.ncsu.edu/human_resources/intemployment/i9_faq.php
• HR International Employment I-9 Guardian webpage: http://www.ncsu.edu/human_resources/intemployment/i9guardian.php
• HR International Employment E-Verify FAQs: http://www.ncsu.edu/human_resources/intemployment/everify_faq.php
• NC State PRR on Employment Eligibility Verification (Reg. 05.55.09): http://policies.ncsu.edu/regulation/reg-05-55-09
• USCIS I-9 form: http://www.uscis.gov/files/form/i-9.pdf
• USCIS I-9 main webpage: http://www.uscis.gov/I-9Central
• USCIS E-Verify main webpage: http://www.dhs.gov/e-verify
• I-9 Guardian system log-in webpage: https://perfectcompliance.com
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