Immigration Compliance Auditing

AuthorCharles M. Miller/Daniel Brown/Marcine Anne Seid
ProfessionFounding 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
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
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.
244 Immigration 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
10.02.1 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.
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.

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