Non-Discriminatory Termination of Employees in an Internal I-9 Audit

With ICE currently cracking down on employers for unauthorized workers, see Metropolitan Warehouse and Wei’s Super Buffet, an internal I-9 audit has never been more important for a company. Compliance via an internal I-9 audit can save a company from big headaches, large fines, and possibly even criminal penalties.

When a company is undergoing an internal I-9 audit and suspect documents are discovered, the company must be very cautious, making sure there is no discrimination against the employee through the I-9 audit process. Additionally, it is important to make sure the employee is provided an opportunity to provide genuine documentation.

Steps for Non-Discriminatory Termination

Here are the steps to making sure termination, where required by law, is done in the proper, non-discriminatory manner:

1. 1. If a translator is needed, make sure the company hires an impartial one. It is very important that the employee understands exactly what is going on throughout the I-9 audit process.

2. 2. If the issue is suspect documents, the employee needs to be told that their documentation does not appear (using language such as appear is important!) to be genuine, and then they need to be asked if they can provide any genuine documents.

3. 3. The employee should then be provided with the Lists of Acceptable Documents and given an adequate time period to present either one selection from List A or a combination of one selection from List B and one selection from List C.

4. 4. If the employee is able to present valid documents, proceed with updating the I-9 in the same manner done with all employees. If not, the employee will have to be terminated for lack of valid documentation, as per IRCA.

Terminating employees for lack of work authorization in an internal I-9 audit can be very complicated and often difficult to handle. A trained internal I-9 auditor or legal counsel should be present to handle any issues that may arise. For more information on an internal I-9 audit, see this article.

Also, it is good practice to have an attorney from another practice that is knowledgeable in immigration to speak to the terminated employees about possible options they may have. An article addressing some options we have seen for employees in recent cases can be found here.

Jessica Haefele

Corporate Immigration Attorney

MDIVANI CORPORATE IMMIGRATION LAW FIRM

7007 College Blvd., Suite

Overland Park, KS 66211

Phone: 913.317.6200

Fax: 913.317.6202

E-mail: JHaefele@uslegalimmigration.com