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I-9 Audit Best Practices

Question: What actions can our organization undertake to ensure we are prepared for an I-9 audit? 

Response & Analysis:

Since the passage of the Immigration Reform and Control Act (“IRCA”) in 1986, employers have been responsible for verifying all employees’ work eligibility. Form I-9 was intended to document this verification and to help control illegal immigration by ensuring that an unauthorized person cannot get a job. The primary focus of the Form I-9 and process is to prohibit employers from hiring or continuing to employ someone who the employer knows or should know is not authorized to work. The process includes verifying both the identity and the employment authorization of each new employee and then documenting this verification. 

Audits by the United States Department of Homeland Security, Immigrations and Customs Enforcement Agency (“ICE”) are on the rise. In recent years, the U.S. government has placed great emphasis on deterring the employment of unauthorized workers and ICE has stepped up efforts to expose non-compliant businesses by conducting I-9 audit investigations. In addition to looking for evidence of unauthorized workers, ICE has been focused on Form I-9 recordkeeping deficiencies, which many employers have thought of as mere technical violations but have been treated by ICE as substantive violations. In 2012, record fines were imposed against employers for I-9 violations— somewhere in the neighborhood of $12M—and approximately 3,000 investigations commenced. These numbers validate the importance of implementing and maintaining a compliant employee eligibility verification program—failure to do so could be very costly. There are certain best practices your organization can undertake to prepare for a successful ICE audit:

  • First and foremost, make sure that you are you are using the revised Form I-9 that went into effect May 2013 (OMB# 1615- 0047 with an expiration date of March 31, 2016); that each Form I-9 is filled out completely and properly; and that the form is signed and dated.
  • Complete the Form I-9 in the prescribed time frame: Section 1 must be completed by no later than the first day of paid work and Section 2 by no later than the third business date from the hire date, and securely store and retain the Form I-9 for the proper time period: until the later of three years after the date of hire, or one year after employment ended.
  • Keep Form I-9s in a separate, easily accessible file, maintained apart from your personnel file for an employee, and separate out current employees’ Form I-9s from those of former employees. Maintaining two separate binders or files will make it easier to produce the appropriate documents in the event of an audit.
  • Compile and regularly maintain an employee list. In the event of an audit, you will likely be asked to provide it and it will ensure a smoother process if you have all your information up-to-date and readily accessible.
  • Thoroughly train personnel who deal with Form I-9s and try to limit the number of personnel handling them so that Form I-9s are the ultimate responsibility of only one or two employees.
  • Annually, conduct a self-audit to uncover any deficiencies or errors in your program or with specific employee verifications. It is better to know and correct in advance rather than be surprised when you are under the gun, so making self-audits a part of your I-9 compliance program is critical.
  • If an error is found, take immediate steps to correct it. For information on correcting errors and for general guidance, review the FAQ section on the U.S. Citizenship and Immigration Services (USCIS) website.

In the event that your organization is audited, there are certain things you should do:

  • First, if agents show up at your workplace (rather than you receiving a written notice of inspection (“NOI”)), do not consent to an immediate inspection as you have three days to prepare. It is much better to be well-prepared and provide a careful response to the NOI.
  • The next step is to call your immigration attorney. The window to respond is very small and you want to ensure you are doing everything properly.
  • Once the audit is underway, document everything turned over to ICE and make sure you provide copies—not originals—of any documents you provide.
  • If, after the audit, a fine is levied, appeal it. Many businesses have been successful in getting fines reduced.

One additional item of preparation: earlier this year, the USCIS released an updated “Handbook for Employers” as part of the Form I-9 revisions. It is a really useful guide and the instructions themselves answer many common questions. ICE audits are on the rise significantly, so now is the time to proactively prepare and ensure that your employee eligibility verification program is compliant.

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This document and/or presentation is provided as a service to our customers. Its contents are designed solely for informational purposes, and should not be inferred or understood as legal advice or binding case law, nor shared with any third parties. Persons in need of legal assistance should seek the advice of competent legal counsel. Although care has been taken in preparation of these materials, we cannot guarantee the accuracy, currency or completeness of the information contained within it. Anyone using this information does so at his or her own risk.

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