How to Conduct an I-9 Audit
With immigration in the spotlight nationally, it is widely expected that I-9 audits will sharply increase this year as the Department of Homeland Security and related agencies take a broad approach to identify illegal immigrants and workers. With this in mind, regardless of industry, size, or location, employers would be wise to take this opportunity to audit not only their I-9s practices (including completion at hire, storage, etc.) but also their current I-9 records. When audited, if I-9s are found to be missing, incomplete, or even completed with minor errors, the potential exists of big fines and penalties to be levied.
With all this in mind, below we break down general guidance on how to conduct an audit of your I-9s ASAP, as well as compliant I-9 practices to implement should you find your not quite right.
Step 1: Ensuring your current process is compliant.
First off, you should ensure that you are completing I-9s correctly right now as you hire. Below is a general breakdown of this employer requirement. Detailed information on this topic can be found and should be referenced on the USCIS website.
Employers must complete the Form I-9 process for every employee hired. The purpose of this process is to verify in formal record that the employee being hired is legal to work in the United States. If an audit is completed and I-9s are found to be missing, incomplete, or contain errors, employers are subject to hefty fines- thousands of dollars for each incorrect or missing document.
Form I-9 Process Requirements:
1. You must have the employee complete Section 1 of the Form I-9 no later than their first day of employment.
Watch out: Pay attention to details! If the Form I-9’s are completed incorrectly (missing dates, fields, incorrect formatting, errors, etc.) you may be subject to hefty fines upon completion of an audit! Have the employee start over if necessary if they make a mistake while completing.
Best Practice: If you have pre-employment paperwork that employees complete before their first day, include the Form I-9 within this packet. You may not ask an individual who has not accepted a job offer to complete Section 1.
2. Section 2 must be completed by the employer within 3 days of the employee’s hire date. This includes having the employee bring in approved identification documentation for you to inspect and record within this time frame. An employee MUST present either an approved form of ID from List A OR approved IDs from List B AND List C. The same person who inspects these documents must also be the person who completes section 2.
Watch Out: Employers cannot ask for specific documents—employees choose from the acceptable documents on the I-9 list.
Watch out: if an employee is unable to provide approved and acceptable forms of ID documentation within this 3-day time frame, you will be required to terminate their employment on the third day.
Watch out: Forms of ID which have expired are NOT acceptable and cannot be accepted. Make sure any form you are using to complete Section 2 is unexpired.
Watch out: In some cases, employees may be required to re-verify their status upon expiration of the ID used in this initial process. In general, this will apply to only employees whose eligibility to work and live in the US was temporarily granted (non-residents, and aliens authorized to work temporarily). You do not need to re-verify any documentation for US citizens, noncitizen nationals, or lawful permanent residents (for example, a driver’s license that expires). You will need to track these expiration dates and ensure re-verification occurs before the ID expires. Re-verification does not apply to List B documents.
Best Practice: it is best practice to make copies of the ID(s) provided by the employees and keep them attached to the completed Form I-9. Note: this practice must be consistent. If you do not have copies of IDs for all employees, you should not have any copies.
3. You must maintain records of employee I-9s separate from all other employee records. You must maintain these documents for the duration of an employee’s employment with the Company, and for either three (3) years after the date of hire, or one year after the date employment is terminated, whichever is later.
Watch out: Make sure you are keeping the I-9s in a secure location as they have sensitive personal identifying information.
Watch out: These files must be kept separate from all other employee files (they should not be in a file with other employee documents). If being kept electronically, and not automated by a payroll provider or similar service (for example, in Google Drive), this is still the case and these should be in a separate electronic folder.
Best practice: Keep these documents in a separate binder or electronic folder, alphabetized. Consider a separate filing system: a binder/file for Active Employee I-9s, and a binder/file for Inactive employee I-9s separated by termination year. This way you can discard each inactive group as years pass.
Step 2: Completing an audit of existing documents.
In light of anticipated increased audits of I-9s, it would be wise to audit your existing archive of employee I-9s completed so far. This includes those for still active employees, as well as any who have been terminated over the past 3 years (which are also required to be kept on file). Below is a checklist of steps to take in order to complete a thorough and compliant audit, including actions that need to be followed when making corrections to I-9s.
Preliminary Actions:
Create a roster of active employees.
Create a roster of inactive employees separated in the past 3 years.
Collect all active employees' I-9s.
Collect separated employees' I-9s into a separate file (3 years).
Audit Steps:
Review Documents:
Identify any missing I-9s for active or previously separated employees.
Check Section 1 (Completed by Employee), including but not limited:
Ensure employees provide their full name, date of birth, address, and Social Security Number (if applicable).
Verify that the employee checked their immigration status and signed and dated the form.
Identify any and all other errors, incompletions, etc. within this section
Check Section 2 (Completed by Employer), including:
Ensure the employer reviewed original documents within three business days of hire.
Verify that document information (title, issuing authority, number, expiration date) is correctly entered.
Confirm the documents provided and entered into each list corresponds with each list’s acceptable documents.
Confirm that the employer signed and dated Section 2.
Identify any and all other errors, incompletions, etc. within this section
Check Section 3 (For Reverification, if applicable)
If the employee’s work authorization expire, confirm timely reverification was completed.
Make sure the employer signed and dated Section 3.
Any and all other errors, incompletions, etc.
Identify & Correct Errors (includes completing and attaching a corrective action form to the I9)
For minor errors (e.g., missing date, incorrect document title), draw a single line through the incorrect entry, correct it, and initial and date the change.
For major errors (e.g., missing Section 2, employee failed to sign Section 1), complete a new I-9 form with the employee and attach it to the original.
Never use white-out or alter prior information in a way that obscures the original entry.
Address Missing or Noncompliant Forms
If an I-9 is missing, request the employee complete one immediately with proper documentation ASAP.
If incorrect documents were used, request correct, unexpired documents from the employee.
If an employee is no longer working but an I-9 was missing or incomplete, document the issue in a memo for audit records.
If major issues are found, consult an immigration compliance attorney or a specialist to mitigate risks.
Document & Store I-9 Forms Properly
Keep I-9s separate from personnel files for confidentiality (their own separate master binder or folder).
Maintain all active employees and separated employees for 3 years after separation.
Electronic storage is allowed but must be compliant with ICE (Immigration and Customs Enforcement) regulations.
Consider setting up a reminder system for reverification deadlines.
If you are contacted about an audit from, before taking action with providing reviewing or editing any I9 documents, you should reach out to a professional for advice and counsel.
