Recently blogs and the media have focused in the increase of ICE I-9 audits of U.S. employers. Meanwhile, many companies remain unaware that the Justice Department’s Office of Special Counsel (OSC) is another key player in ensuring I-9 compliance. OSC falls within the Justice Department’s Civil Rights Division and investigates discrimination charges alleging immigration-related violations, including the way an employer has managed its I-9 and E-Verify procedures.
Charges can be filed with OSC by federal agencies such as USCIS or the injured party (e.g., employees, former employees, and job applicants) within 180 days of the alleged act of discrimination. OSC has 210 days to investigate. During the final 90-day period, OSC and/or the injured party can file an administrative complaint against the employer. Complaints are then tried before an Administrative Law Judge.
In FY2012, OSC made 192 informal phone “interventions” with employers. Sometimes the phone call was all it took to resolve the charges. Other times, an actual investigation was deemed necessary, which means that OSC conducted a more formal inquiry. This included contacting the employer in writing and requesting a review of certain documents. When the charges had merit, OSC filed an official complaint against the employer.
When charges are found to be valid, employers are subjected to remedial measures. For example, where the complaints are from injured parties such as employees or former employees, employers are often ordered to pay back wages and reinstate workers if the workers agree to be reinstated. Additionally, OSC can impose fines on employers that are found to have violated the law. Violations within OSC’s penalizing discretion include Form I-9 errors, which coincides with ICE’s authority over the same.
Even where charges are found to be without merit, employers may still be required to undergo training and subjected to certain remedial measures such as OSC webinar trainings and/or E-Verify tutorial trainings. This is because a primary goal and purpose of OSC is to better educate employers of the law. As such, OSC has numerous free online trainings for employers. Oftentimes, violations can occur because an employer was unaware of or unclear about what the law actually required.
Employers are encouraged to take efforts to ensure I-9 compliance to avoid ICE and OSC investigations. Best practices include (1) internal and/or third party audits; (2) regular review and revision of I-9 corporate policies; and (3) seeking I-9 specialist legal counsel.