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What should an employer do if, when consulted about the results of the internal audit, an employee
admits that he or she is not work-authorized?
The employer sanctions provision of the INA makes it unlawful for a person or other entity, after hiring an alien
for employment, to continue to employ the alien knowing that the alien is, or has become, unauthorized for
employment. By regulation, “knowing” includes not only actual knowledge, but also knowledge which may be
fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise
of reasonable care, to know about an individual’s unlawful employment status.
Must an employer always provide employees with a minimum of 90 days to provide Form I-9
documentation where alternative documentation is requested?
No. The employer sanctions provision of the INA makes it unlawful for a person or other entity, after hiring an
alien for employment, to continue to employ the alien knowing that the alien is, or has become, unauthorized
for employment. The employer should provide all employees who claim they are work-authorized with a
reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily
discharge employees without providing a process for resolving the discrepancy. The 90-day period set forth in
U.S. Department of Homeland Security Safe-Harbor Procedures for Employers Who Receive a No-Match
Letter, 72 Fed. Reg. 45611 (Aug. 15, 2007), was rescinded; the 90-day period is not a legally binding regulatory
requirement. An employer should recognize that some documents may take up to or more than 120 days to
obtain. The reasonableness of a timeframe should be determined on a case-by-case basis. Factors to consider
include, for example, the specific nature of the deficiency and the time required for alternative Form I-9
documentation to be obtained under the circumstances. In addition, all employees who are asked to present
alternative documentation should be given the choice of acceptable documents to present (they do not have to
use the same document used previously) and should not be treated differently based on perceived or actual
citizenship status or national origin. Some employees may not have the same document(s) in their possession
that they originally presented for the Form I-9, either because they have misplaced the document(s), their
immigration status has changed, the document has since expired, or for other reasons.
U.S. Immigration and Customs Enforcement (ICE) presumes that an employer has acted reasonably if it
takes appropriate actions to resolve the apparent employment of unauthorized employees within 10 days
of receiving a Notice of Suspect Documents letter. In the context of an internal audit, should an employer
also provide employees only 10 days to present acceptable alternative documentation?
No. The 10-day period is an ICE policy that applies solely when ICE has issued a Notice of Suspect
Documents letter. In these cases, ICE has already determined the employee at issue does not appear to be
presently work-authorized. This time period has no bearing on the amount of time an employer may provide its
employees to address discrepancies discovered through an internal audit. It is important to remember that the
employer sanctions provision of the INA states that it is unlawful to continue to employ an individual once the
employer has actual or constructive knowledge of the employee’s unauthorized employment status.
What should an employer do if the employee is unable to present acceptable documents within what the
employer has determined to be a reasonable amount of time?
An employer should consider the reasons for an employee’s inability to present acceptable documentation and
determine whether an extended period of time would be appropriate based on the particular circumstances on a
case-by-case basis. An employer should be sure to allow or disallow additional time based on objective non-
discriminatory and non-retaliatory criteria and without regard to an individual employee’s citizenship status or