Planning and process for internal I-9 audits

One of the best ways to avoid surprises during an audit by Immigration and Customs Enforcement (ICE) is to conduct your own internal I-9 audit regularly. This will give you the ability to uncover and correct all I-9 mistakes.

Benefits of conducting internal I-9 audits

By conducting internal I-9 audits annually, you will have the opportunity to discover and correct any mistakes in your paperwork. This can be a lifesaver when it comes to avoiding problems and fines should you face an audit by ICE.

“Once you make a correction on an I-9, you start a 5-year clock on the statute of limitations. So, once that correction has been in your system for 5 years, you can no longer be fined on that correction or that I-9 that has that correction. So it’s a really good idea to get your audit done so that you can start this 5-year clock ticking on your corrections.” Valentine A. Brown explained in a recent CER webinar. Additionally, the internal audit itself becomes part of a good faith defense in the case of an ICE audit.

Conducting these audits will also let you discover and correct other problems. These include things like undocumented workers or areas where training is needed (in terms of correct completion of the I-9 form).

Conducting internal I-9 audits: Pre-audit considerations

“You really want to think the audit all the way through before you start because you really don’t want to start and not finish.” Brown advised. “The worst thing you can do is start an audit and not finish it; because then you have all these forms and problems in your system that you now know about but you never fixed. That could be very harmful to the company in an I-9 audit situation by ICE.”

Here are some pre-audit considerations:

• Who will conduct the audit? General Counsel? HR? Outside counsel? An external HR contractor?
• How will audit be communicated to employees?
• How will audit be documented?
• What are the worst case scenarios your company may face? How will they be handled?

Once you have answers to these questions, be sure to talk them through with HR, General Counsel, and management so everyone is on the same page.

Conducting internal I-9 audits: Policy considerations to make in advance

It is also important to create policies in advance to handle the situations you may encounter. Once each policy is created, it needs to be followed consistently to avoid discrimination claims. For example, you may discover:

• I-9s need employee corrections. You’re almost certainly going to come across I-9s that need to be corrected. You need to have a policy to outline who will do the corrections and how they will be done.
• Undocumented workers. You may come across indications that you have undocumented workers. For example, you may have two employees using the same documentation. How will this be handled with the individuals in question?
• Suspect documents. You may discover some documentation that has been falsified.
• Complaints start coming in to the Office of Special Counsel. For example, someone may complain when you request more or different documentation from them.
• Employees may begin protests or stage walk outs. While rare, this has been known to happen when too many employees are terminated. The situation can escalate quickly, so having a plan in advance is important. In some cases, unions or community activists may become involved.

This list is not comprehensive, but the key is to create a list of scenarios that could happen in your situation and have a plan in place to deal with each item. The answer won’t be the same for every employer.

Internal I-9 audit procedure

Once you have answered the questions above, you should create an internal I-9 audit procedure. Here is a sample:

• Generate a list of all active employees (be sure to include the employee’s start date in your spreadsheet).
• Generate a list of all employees terminated within the last 3 years.
• Purge I-9 forms according to legal retention requirements. I-9 forms can be purged either one year after the date of the employee’s termination or 3 years after hire, whichever is longer.
• For every employee, check to ensure that:
  • The I-9 form exists
  • The E-Verify information (if applicable) is inserted on the form and printouts are attached to the form.
  • The proper version of the form was used. The form has been updated over the years and the version that was current at the time of the employee’s hire should have been used. However, if you find an incorrect version of the form was used, it may create a worse penalty to discard it and use a new (correct) form. This is because that would incur a penalty of late completion of the (correct) form, which is worse.
    
    Fines for using old forms are rare. The rationale for including this in the audit is to use this as an opportunity to improve the process to ensure it doesn’t happen again.
  • The I-9 is accurate and complete. For any inaccuracies, follow the procedures you outlined at the beginning of the process. For Section One corrections, explain your procedure and purpose to the employee in question and ask them to correct/complete it. Be sure the employee does not back date the form, but do initial and date all changes.
    
    For Section Two (documentation) corrections, ask the employee to provide one of the documents noted on the form and be sure to give plenty of time for the employee to provide the documents, such as 30 days. In other words, don’t penalize the employee since this type of error was probably an error on the part of the employer. Don’t request a specific document to be used; any document listed on the form must be accepted.

The above information is excerpted from the webinar “I-9s, E-Verify, and ICE: How to Keep Employee Records Compliant.” To register for a future webinar, visit CER webinars.

Attorney Valentine A. Brown, a partner at Duane Morris LLP in Philadelphia, serves as global immigration law counsel to a diverse group of multinational and domestic corporations and their employees. She provides advice, compliance audits, and representation to help navigate the intricacies of U.S. and foreign immigration laws.