United States: Conducting An Internal Audit Of Your Company's I-9 Forms

Last Updated: June 13 2016
Article by Yane Park

If you work in Human Resources, you are surely familiar with the Employment Eligibility Verification Form I-9 ("Form I-9"), and depending on the size of your company's workforce, you might complete new I-9s on a regular basis. But have you ever gone back to do an internal audit of the already completed Forms I-9? Do you know the most common mistakes found on I-9s?

Regular internal audits ensure that an I-9 has been completed for each employee, that employees' identity and employment authorization status have been verified, and that no discriminatory practices have been committed in the process of completing them. U.S. Immigration and Customs Enforcement is the agency in charge of conducting site visits to audit employers' Forms I-9. But when ICE officials are the ones who find problems with your I-9s, your company exposes itself to civil fines, criminal penalties in the case of repeat violations, debarment from government contracts, and even a court order requiring the employer to provide back-pay or re-hire employees they discriminated against. Civil fines range from $110 to $16,000 for each worker, while criminal penalties for engaging in a pattern or practice of hiring, recruiting, or referring for a fee unauthorized workers may result in monetary fines up to $3,000 for each unauthorized worker and/or up to 6 months imprisonment for the entire pattern or practice of hiring.

The violations need never happen. There are resources available to employers on how to complete the Form I-9. There is the Handbook for Employers published by U.S. Citizenship & Immigration Services (M-274, Rev. 04/30/2013), a 66-page document offering a wealth of information on everything from timely completion of Forms I-9, retention requirements, and document verification. USCIS also has an "I-9 Central" on their website at https://www.uscis.gov/i-9-central where they provide the most up-to-date guidance on issues including correcting errors on Forms I-9, requesting documents without being discriminatory, and attaching explanatory memos to Forms I-9.

Keep in mind that when ICE comes to your worksite for an audit, they will likely request Forms I-9 of all your employees, whether they have permanent employment authorization in the U.S. or not. Based on our experience with auditing companies' Forms I-9, coupled with a recent joint guidance from ICE and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (https://www.ice.gov/sites/default/files/documents/Document/2015/i9-guidance.pdf), here are some of the most common mistakes you should be sure to avoid:

  1. When making corrections, draw a single line through the incorrect information. Never blot out the information so the previously entered information is no longer visible.
  2. After every correction, initial and date either next to the correction or in the margin. Also note that only employees can correct information in Section 1, and only employers can correct information in Sections 2 and 3.
  3. Employers must be careful to avoid collecting more documents than is required, as that is a substantive violation (as opposed to a technical violation, which is less severe). Substantive violations cannot be remedied! When requesting documents, hand employees the list of acceptable documents (current version available on p. 9 at https://www.uscis.gov/sites/default/files/files/form/i-9.pdf) and only accept what is required, not more.
  4. Do not backdate. If Section 2 was not dated initially, enter the current date, and initial and date. Backdating is never allowed. The same applies to Section 1, if the employee failed to enter the date when s/he first completed Section 1.

By avoiding these four common mistakes, employers can reduce the number of violations on each I-9 and decrease the potential amount in fines, should ICE ever audit your company's Forms I-9 in the future. While we hope you never have an ICE audit, doing your own audit and going over questions or issues with legal counsel will pay big dividends if ICE ever comes for a visit.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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