At the end of 2015 there were two (2) important developments in the workplace enforcement arena that will be of great interest to Human Resources Managers and Professionals. First, a special memorandum or guidance was issued jointly by the Department of Homeland Security (“DHS”) and Department of Justice (“DOJ”) with regard to conducting internal I-9 audits. Second, a recent release from the Department of Homeland Security (DHS) discusses the status of a new I-9 Form that DHS has submitted for notice and comment.

1. PROPOSED CHANGES TO THE WORKSITE ENFORCEMENT
AND EMPLOYMENT VERIFICATION PROCESS: WHAT HR
MANAGERS AND PROFESSIONALS NEED TO KNOW TO “RING-
IN” THE NEW 2016 YEAR!
At the end of 2015 there were two (2) important developments in the
workplace enforcement arena that will be of great interest to Human
Resources Managers and Professionals. First, a special memorandum or
guidance was issued jointly by the Department of Homeland Security
(“DHS”) and Department of Justice (“DOJ”) with regard to conducting
internal I-9 audits. Second, a recent release from the Department of
Homeland Security (DHS) discusses the status of a new I-9 Form that DHS
has submitted for notice and comment.
On December 16th, 2015, DHS and DOJ jointly issued additional new
guidance for employers about how to conduct internal audits. Oftentimes
this process is referred to as the “self-audit” process. Self-audits remain
instrumental as a methodology available for any employer seeking to
minimize financial penalties due to incorrect I-9 Forms and to reduce the
likelihood that the employer has inadvertently hired an unauthorized worker
in contravention of the provisions of the Immigration Reform and Control
Act of 1986 (as amended).
The process ofconducting a self-audit can present many sticky issues. For
example, if an employer is involved in a self-audit, and in doing so, fails to
treat each employee in the organization “similarly” then the employer may
be subject to penalties and liabilities under the anti-discrimination provisions
of the Immigration and Nationality Act. Additionally, if documents of some
employees are “suspect”but others are not, how does the employer address
this issue? If the employer decides to do new I-9 Forms then the questions of
which I-9 Form to use and how to do the I-9 process are also common
questions.
The DHS and DOJ have attempted to provide guidance for employers
seeking to avoid discrimination charges against employees when conducting
an I-9 self audit. The agencies have also provided guidance on key practical
questions that an employer completing a self-audit. For many years this
continued to be a gray area that was not addressed by the M-274,
Employer’s Handbookor by the guidance issued online at I-9 Central.

2. For example:
 What is the procedurefor correcting an error or omission on an I-9
Form?
 What should an employer do if the wrong version of the I-9 Form was
completed?
 What should an employer communicate to employees before and after
conducting an internal I-9 Form audit?
 How many days should an employee be provided to present more or
additional or different documentation if an I-9 Form self-audit leads to
the inescapable conclusion that the employee’s I-9 Form or supporting
documents are deficient?
The new guidance document issued by the DOJ and DHS addresses how E-
Verify employers should deal with circumstances where an E-Verify case
has not been created for all new employees hired after the date of E-Verify
enrollment, or the employer discovers an employee was terminated based on
the receipt of a tentative non-confirmation (“TNC”).
In addition to the foregoing, on November 24th, 2015, the USCIS issued a
new Form I-9. Please note that employers must continue to use the current
version of Form I-9 until the proposedchanges are approved and a new
Form I-9 is promulgated to the public and posted on the USCIS website.
Employers need to be aware of the proposed changes to the I-9 Form
Based on our review of the proposed modifications to the I-9 Form and the
previous release that the Nachman Phulwani Zimovcak (NPZ) Law Group
sent in December, 2015, the following are some of the proposed
modifications to the I-9 Form that we are likely to see:
 Clarification that the “other names” field in Section 1 is only for other
“last names” which will likely reduce confusion about the intent of
this field.
 The addition of a special section for notations in Section 2 dealing
with special forms of work authorization (such as AC-21, 240-day
work authorization, etc.) will help employers and likely additional
modifications to the M-274 explaining same may be quite helpful.
 The separation of the Form I-9 instructions from the actual Form will
reduce the paper burden for employers

3.  The addition of multiple spaces for multiple translators will be
particularly useful in industries with a heavy concentration of foreign
nationals who do not speak English
Also, it appears that a barcodeto the I-9 Form has been added to streamline
the audit process. The additional of the barcodeis likely to be helpful in the
“chain of custody”process that continues to plague the I-9 Form audit
process formany years.
The recently promulgated self-audit guidance and proposed changes to the
Form I-9 seem to be a good “crystal ball” for employers. These items are a
clear “weather vane” that point in the direction for 2016 that the U.S.
Federal Government is likely to want to continue to enhance “worksite
enforcement” and monitor and enforce the employment of authorized and
unauthorized workers.
While the proposedmodifications to the I-9 Form and not too significant, it
is important to note that Human Resources Managers and Human Resources
personnel who are responsible for completing the I-9 Form for
organizational employees will be required to familiarize themselves with
these proposed changes.
Employers throughout the U.S. will have to continue to be vigilant about I-9
Form compliance issues in the hiring and retention of its employees.
Immigration and Customs Enforcement (“ICE”) continues to prioritize I-9
compliance; in 2014, ICE initiated 2,022 cases resulting in 1,320 I-9 audits,
172 criminal arrests of employers, 541 administrative arrests of aliens, and
issuance of 637 final orders totaling over $16.2 million in assessed fines.
As many HR Managers and Human Resources Professionals are aware, if an
I-9 Form audit is notices by DHS, that process begins with a notification
from the Worksite Enforcement Division of the Immigration and Customs
Enforcement Office. Once noticed for an I-9 Form investigation, the I-9
Forms must be provided for inspection within 3 days of the request.
Employers are reminded that the I-9 Forms should be stored in a manner
(paper or electronically) that allow for the documents to be available for
inspection. However, and as may be necessary under both State and Federal
Laws, the documents will have to be retained in a manner that safeguards the
confidential information on the documents.

4. As we have always advised, if an employer decides to store the forms
electronically, the electronic storage system must include controls to ensure
accuracy of the system, detection and prevention of unauthorized or
accidental alteration of the forms (including the e-signature), and an audit
trail of any alteration /change that can be accessed and inspected during an I-
9 audit.
Also, and as our Law Firm continues to advise, to avoid potential I-9 Form
liabilities, employers are advised to establish procedures and schedules to
regularly conductself-audits. In our discussions with ICE and with other
DOJ and DHS officials, it appears to be the case that I-9 Form “best
practices” recommends that self-audits occurperiodically (annually or every
two years) to ensure that compliance issues are addressed for new hires,
terminations, changes to work authorizations and potential irregularities in
employee I-9 Forms.
If you or any member of your HR Management staff should have any
questions or require any additional information about the new proposed
changes in the worksite enforcement arena, please feel free to contact the
Business Immigration Lawyers and Attorneys at the Nachman Phulwani
Zimovcak (NPZ) Law Group, P.C. by e-mailing to us at
info@visaserve.com or by calling our office at 201-670-0006 (x107). We
look forward to being able to assist you and guide you and your staff in the
I-9 Form self audit or investigation process.