Should an Employer Conduct an I-9 Audit?

By: Maryjo F. Pirages Reynolds

I-9 audits can detect even inadvertent errors, saving employers from civil fines of up to $1,100 per improperly documented employee. Many employers are unintentionally violating the requirements of the Immigration and Nationality Act and an I-9 audit can catch inaccuracies, instruct on best practices, and provide evidence of good faith should provide U.S. Immigration and Customs Enforcement ever conduct an audit of your I-9 records.

Employers can internally audit their I-9 records or engage a third party to conduct an I-9 audit. If you hire a third party vendor to conduct an I-9 audit, make sure that it is one who not only points out inaccuracies, but also provides substantive instructions on how to properly correct errors, as well as best practice general recommendations. All I-9s, even those for inactive or terminated employees should be reviewed. If an I-9 is missing for an employee, the employer should work with the employee to obtain one and attach a note to the new I-9 explaining the circumstances. If an employee is inactive, the employer should also attach a note to his or her I-9 stating so. Each entry field should be examined, with special attention given to dates, numbers, and confirmation of appropriate, timely signature.

Broadly speaking, only the employee can correct an error in Section 1. It is important to remember that the employee is supposed to complete Section 1 by his or her first day of employment, but only after he or she receives a job offer. The employer is responsible for completing Section 2 and Section 3, if applicable. Section 2 must be completed within three (3) business days after the employee’s first day of employment. Employers should correct any errors in Section 2 that come to their attention during an audit. Corrections should be made by drawing a single line through incorrect information, entering the correct information, and dating and initialing next to the correction. Errors should be visible to reflect the audit trail and should not be fixed with correction fluid. I-9 changes should not be concealed or the point of the I-9 audit gets negated.

We advise that employers establish a calendar system to track reverification requirements for employees whose work authorization will expire. Employers should track both the expiration date, as well as notification dates. We recommend providing such employees with at least 120 days notice as well as a follow up 30 days notice. Contact the employee directly and do not work through his or her manager to avoid potential allegations of discrimination based on status.

It is also important to avoid over documentation during any I-9 completion in an effort to prevent a discrimination claim. Let the employee choose what documents he or she wants to present. We recommend retaining photocopies of presented documents. Photocopies are not required, but greatly aid in the usefulness of an I-9 audit. Employers should be consistent if making photocopies and do so for all employees.

I-9 records need to be retained for three (3) years after the termination of an employee’s employment. A document retention process should be in place. We advise keeping I-9 records that are eligible for purging separate from active I-9s. Additionally, all I-9s should be stored separate and apart from all other employment records. Please contact us with any questions about the I-9 process and/or to schedule an I-9 audit to be conducted by HolmstromKennedyPC.