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I-9 internal audit standards clarified

by Jesse Goldstein

An acting deputy special counsel of the U.S. Department of Justice (DOJ), Civil Rights Division, recently issued a technical assistance letter explaining that during an internal I-9 audit, a company shouldn’t request documents that an employee didn’t present when he originally completed his Form I-9 or ask for better photocopies of the documents provided by the employee. 

Form I-9 compliance obligations
The Immigration Reform and Control Act of 1986 (IRCA) requires all employers that employ workers in the United States to verify the employment eligibility of anyone hired after November 6, 1986. The obligation to verify eligibility is documented by the Form I-9, which must be used by all U.S. employers, regardless of their size or the number of employees they have. Employers must make the Form I-9 available for inspection upon request by an officer of the U.S. Citizenship and Immigration Services (USCIS), the U.S. Department of Labor (DOL), or the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

Penalties for I-9 violations
Civil and criminal penalties may be assessed for noncompliance with IRCA requirements. Under IRCA, an employer’s failure to properly complete and maintain I-9s (commonly referred to as “paperwork violations”) can result in civil fines of between $100 and $1,000 per violation, per form. The amount of the fine can vary, depending on several factors, including:

  1. The size of the business;
  2. The seriousness of the violation;
  3. The employer’s good faith in completing the Form I-9;
  4. The employment of unauthorized aliens; and
  5. The employer’s history of previous violations.

There are also progressive mandatory I-9 civil penalties for the unauthorized employment of aliens, as well as civil and criminal penalties for a “pattern or practice” of hiring unauthorized aliens. There’s no requirement that each factor be given equal weight, and additional factors may be considered (such as the ability of a particular business to actually pay a proposed fine).

Internal audit standards
On December 30, 2013, an acting deputy special counsel for the DOJ’s Civil Rights Division issued a technical assistance letter addressing “whether, in the context of an internal Form I-9 audit, an employer may request the employment eligibility documentation presented at the time the Form I-9 was completed, if the copies of the documentation are unclear and prevent the forensic evaluation of their genuineness.”

The deputy special counsel began by noting that “while [it is] not required by law, an employer may conduct an internal audit of Forms I-9 to ensure ongoing compliance.” However, “internal audits should not be conducted because of employees’ citizenship status or national origin, or in retaliation for exercising their rights. Moreover, employers must apply consistent standards when reviewing Forms I-9 for deficiencies.” The standard of review during an internal audit does not change from the initial employment eligibility verification process; documents that reasonably appear to be genuine must be accepted.

Further, “as employers are not required to photocopy I-9 documentation, an employer should not conclude, solely based on unclear photocopies, that an employee’s Form I-9 documentation is not genuine. Put differently, an employer should not request to see originally-presented documents or alternative documents solely because photocopies are unclear or whe[n] documents originally-presented were not photocopied. Moreover, requesting such documents on the basis of citizenship status or national origin may violate [antidiscrimination law].”

Bottom line
While internal audits are helpful in ensuring the effectiveness of your organization’s I-9 compliance policies and procedures, you must be careful not to request documentation that employees aren’t obligated to provide. Moreover, you must always apply consistent standards when you review previously completed I-9s.

Jesse Goldstein is an attorney and shareholder with Vercruysse Murray, P.C., in Detroit, Michigan. He may be contacted at