Immigration Law: Conducting an Internal I-9 Audit

By Maria del Carmen Ramos

Since 2009, there has been a dramatic change in Immigration and Customs Enforcement’s (ICE) workforce enforcement strategy. Before 2008, ICE focused its enforcement efforts almost exclusively on illegal workers. In 2009, however, ICE shifted its focus from illegal workers to employers who knowingly hired unauthorized workers. As part of its strategy of targeting employers, ICE began setting up centers across the country that are fully dedicated to worksite inspections.

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify that an employee is authorized to work in the United States by completing and maintaining a completed Form I-9 for each employee hired on or after November 6, 1986. ICE enforces employers’ obligations under IRCA by, among other things, inspecting their I-9 forms.

Each I-9 violation can carry a penalty of $110 to $1,100 per form. Of course, the easiest way for employers to avoid potential fines is to make sure they are complying with their I-9 obligations — before they get audited. But employers should also consider conducting a self-audit to minimize the potential for fines. Here are five things to consider when conducting an I-9 self-audit:

1. Review Current I-9 Procedures. Review your verification system and policies to ensure that your policies satisfy IRCA and are being followed in practice. 
2. Compare I-9 Forms with Payroll Records. Prepare a computer printout of all employees hired since November 6, 1986, containing the date of hire and date of termination for all such employees, to ensure there is an I-9 form for each employee.
3. Review How I-9 Forms Are Maintained. Make sure the I-9 forms are separated from employees’ personnel files and maintained in a separate I-9 file (or maintained electronically in compliance with the specific controls for electronic retention).
4. Correcting and/or Replacing a Form I-9. If the employer needs to correct the I-9 form, the new information should be inserted, signed, and dated as of the time of the insertion. If the omission or mistake was in Section 1 of the I-9 form, the employee should also sign and date the correction.  Above all, the form should not be backdated.
5. Completing an Audit. Prepare a file memo that includes, at a minimum, errors discovered, corrections made, actions taken, any changes in policies, or training to undertake.

More than ever, employers should be particularly diligent when it comes to complying with their Form I-9 obligations. Remember, an employer faces civil and potential criminal liability for hiring undocumented workers (regardless of whether it was done knowingly). At the same time, an employer opens itself up to discrimination charges for not hiring newly documented workers who previously presented fraudulent documents. Going forward, worksite enforcement inspections are only expected to increase. So being proactive and conducting a proper self-audit will be key to minimize potentially substantial fines.