Immigration Compliance Auditing

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 243-297

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10.01 IMMIGRATION COMPLIANCE AUDITING

The primary purpose of an external immigration compliance audit is for the auditor to

provide an independent assessment regarding the client’s compliance under the Immigra-

tion and Nationality Act (INA),1 the Department of Homeland Security (DHS) regula-

tions, and immigration-related employment laws.

Immigration compliance audits were developed as a condition of civil and criminal

consent decrees and in corporate immigration due diligence engagements. Immigration due

diligence procedures are used for successor-in-interest corporate situations to determine

whether a company’s immigration compliance program, policies, and training meet stat-

utory and regulatory requirements.2 Immigration compliance programs are considered in

mitigation of federal penalties involving the knowing hire or continuing employment of

unauthorized workers.3 New auditing responsibilities have also been voluntarily assumed

by some employers because of Securities and Exchange Commission reporting requirements.

Government contractors and certain subcontractors required to join the E-Verify program

under the Federal Acquisition Regulation (FAR) nal rule necessarily agree to periodic visits

by the DHS or Social Security Administration (SSA), their authorized agents, or designees.4

Enhanced voluntary compliance responsibilities have also been assumed by employers

who have chosen to enroll in the Immigration and Customs Enforcement (ICE) Mutual

Agreement between Government and Employers (IMAGE) program.5 The IMAGE pro-

gram requires that its member employers submit to an ICE audit, conduct a private

1. Act of Nov. 5, 1986, Pub. L. No. 99-603 (codied at INA § 274A(a)(1)(A),8 U.S.C. § 1324a(a)

(1)(A)). Employer immigration compliance responsibilities began as legal requirements with the

passage of the Immigration Reform and Control Act (IRCA) in 1986.

2. Chapter 9.

3. U.S. Federal Sentencing Commission, F S G M § 8B2.1

(2016), https://www.ussc.gov/guidelines.

4. E-Verify Memorandum of Understanding for Employers; see Appendix J.

5. Beginning in 2006, the DHS encouraged employers in industries that traditionally utilize immi-

grant labor to voluntarily join the IMAGE program. IMAGE-certied employers provide ICE with

information concerning newly hired employees in exchange for agency cooperation and resources.

Immigration

Compliance

Auditing

244Immigration Compliance and Best Practices

external or independent internal audit, use the E-Verify program for all new hires, submit

a self-assessment report, and adhere to the IMAGE program’s Best Employment Practices.6

10.02 THE IMMIGRATION COMPLIANCE AUDIT’S

FOURCOMPONENTS

10.02.1 The Form I-9 Audit

The Form I-9 audit determines whether an employer’s Form I-9 verication compliance

meets the statutory and regulatory requirements. An important feature of the Form I-9

audit is the discovery and remediation of specic potential violations to minimize liability

for penalties. Form I-9 audits require the auditor to make determinations as to the running

of the statute of limitations for paperwork violations,7 timeliness violations,8 and knowing

hire or continuing to employ violations.9

10.02.2 The Compliance Program Audit

Compliance program auditing assesses whether the employer’s compliance policies and

procedures, compliance manuals, and compliance training programs conform to the fed-

eral statutes, regulations, and agency policies. Special attention should be paid to whether

the employer’s compliance program meets the legal standards to avoid antidiscrimination

and unlawful immigration-related employment practices liability. The compliance pro-

gram audit provides an objective analysis so that the employer can use the information for

program improvement and to initiate corrective action if required.

10.02.3 Liability Auditing

Liability auditing assesses potential civil and criminal penalty liability, violations of agency

regulations as well as liability under antidiscrimination and unfair immigration-related

employment and practices (UIREP) laws. The liability audit determines whether there is

potential liability for employer sanctions, civil penalties, knowing hire penalties, paper-

work violations, and indemnication violation penalties.10 The liability audit report should

include the auditor’s recommendations as to remediation as well as mitigation methods

6. Chapter 7, § Chapter 7 § 7.02.2.

7. § 10.04.5.

8. § 10.04.6.

9. See generally, DLS Precision Fab LLC v. U.S. Immigration and Customs Enforcement, No.

14-71980 (9th Cir. 2017); United States v. Curran Eng’g Co., 7 OCAHO 975 (1997); § 10.07.2

(knowing hire or continuing to employ penalties) and § 10.04.7.

10. Chapter 2.

Immigration Compliance Auditing 245

for potential penalties. The objectives of the liability audit require the auditor to make

determinations as to potential defenses and the range of potential penalties.11

There should be a determination as to whether the employer is subject to potential pen-

alty liability for violations of the Department of Labor (DOL) permanent labor certication

regulations and the nonimmigrant temporary worker regulations.12 The audit determines

whether the employer is subject to, and in violation of, E-Verify and/or IMAGE program

conditions13 and whether the statute of limitations defense is applicable for past violations.14

10.02.4 Antidiscrimination and UIREP Auditing

Antidiscrimination and UIREP auditing determines whether the employer is in compliance

with the INA’s antidiscrimination and UIREP provisions,15 document abuse provisions,

Title VII of the Civil Rights Act of 1964,16 and other related laws that might warrant sanc-

tions if violated. Antidiscrimination and UIREP auditing requires that the auditor deter-

mine to what extent the employer’s policies and procedures, manuals, training programs,

and overall implementation are in compliance with federal law.

10.03 THE SCOPE OF THE I-9 AUDIT

The I-9 audit is conducted to determine the employer’s compliance with the employ-

ment authorization verication, attestation, and retention requirements of the INA, the

DHS regulations and policies, and the Ofce of the Chief Administration Hearing Ofcer

(OCAHO) precedent decisions.

The private audit is distinguished from other forms of I-9 review, including an I-9

inspection conducted by ICE, an internal I-9 review conducted by the employer without

an outside lawyer’s engagement, and an I-9 review by nonlawyers.

The external I-9 audit is also distinguished from non-audit services, including the

sampling of errors in a particular group of Forms I-9. Sampling does not involve complete

employer remediation with follow-up auditing, mitigation of potential penalties and res-

olution of retention, and statute of limitations case issues that are integral to I-9 external

audit methodology. Sampling does not substitute for an external I-9 audit conducted by

a qualied attorney auditor as a component of a full immigration compliance audit and

therefore does not serve the objective of audited employer compliance.

11. Id.

12. Id.

13. Chapter 7.

14. §10.04.4.

15. INA § 274B, 8 U.S.C. § 1324b. See Chapter 5.

16. Pub. L. No. 88-352, 78 Stat. 241, enacted July 2, 1964, as amended, 42 U.S.C. [Employment]

§§ 2000e–2000e17.