Employers in the United States have found themselves in a quagmire as a result of new guidance issued by US Immigration and Customs Enforcement (ICE) and the Department of Justice last month. Companies across the country could be faced with legal issues due to the Immigration and Nationality Act, which obliges firms to verify the work authorization of their employees via I-9 forms to prevent the hiring of undocumented immigrants but prevents them taking factors such as the appropriateness of an audit into consideration.

“Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason,” ICE’s guidelines insist. “An employer should also consider whether the audit is or could be perceived to be discriminatory or retaliatory based on its timing, scope or selective nature.”

The Washington Examiner was the first to claim that the new guidelines could see employers facing an increase in lawsuits alleging discrimination if they try to find out the legal status of their employees. The guidelines say that tips should not always be deemed credible and that employers should not ask for documentation from their employees simply as the result of unclear photocopies.

E-Verify should not be made use of unless a federal contractor already has this clause as part of their contract. Companies are also not obligated to fire workers for having provided false information in the past if new valid data has since been provided.