The ICE Form I-9 audit usually begins with the Notice of Inspection (which arrives in person along with an administrative subpoena) compelling the employer to produce the I-9 forms and other related documents within 3 business days. Typically, employers must also produce a copy of the payroll, list of current employees, Articles of Incorporation, business licenses, and social security no-match letters (if any). In some instances, ICE may request an on-site meeting with the employer to gather information about their hiring practices, I-9 procedures, and even, E-Verify use.
After a review of the I-9s has been completed, ICE may issue a Notice of Technical Violations (for technical or paperwork errors) and provide a 10-day window for the employer to make corrections. At the same time, ICE may also issue a Notice of Suspect Documents if the I-9 audit uncovers evidence of fraudulent immigration documents or a “Notice of Discrepancies” for employees who appear to lack proper work authorization. Despite these dire notices, ICE will warn employers that they should not fire the employees or take any adverse action without contacting the employee first to see if documentation (or an explanation) can be provided. If the employee is unable to provide this documentation, the employer is effectively put on notice that they may be employing an unauthorized individual – a dangerous place to be for sure.
Monetary penalties for knowingly hire and continuing to employ violations range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which includes failing to produce a Form I-9, range from $110 to $1,100 per violation.
In determining penalty amounts, ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations.
Listed below are few tips on how to prepare for an I-9 Audit
Gather all I-9s on file: the very first step while conducting an I-9 audit would be to gather up all I-9s. This will give you an idea whether there are any missing forms, help you better organize those with incorrect information and give direction on what steps are to be taken. Once all the I-9s are rounded up make two files of I-9s as follows: I-9s for current employees & for terminated employees. Priority should be placed in looking at I-9s of current employees. Review existing I-9s with employee list to find out if any employee has missed filling the I-9. Also each I-9 should be checked individually to ensure that the data entered is correct. The lowest priority will be handling I-9s of terminated employees.
Obtain I-9s for current employees who are missing I-9s: Once you have identified who all have missing I-9s, call those employees individually and make sure that their I-9s are completed. Current dates should be used when completing the I-9 form. The date of hire is the employee’s actual date of hire, which may have been years earlier. You will want to write a short memo to attach to the I-9 explaining that when the audit was performed, there was no I-9 on file and the employee completed the I-9 at the time of the audit. This will demonstrate that the employer is making a good faith effort to be in compliance. Any employee hired before Nov. 6, 1986, and still employed with the company is not required to have an I-9 form. However, all employees hired on or after this date and who do not have an I-9 on file will need to bring documentation from List A or Lists B and C of Form I-9.
Audit I-9s of Current Employees: Once you have taken the step to close the gap of missing I-9s, you should review each I-9 submitted to make sure that they are completed properly.
- Ensure name, address, maiden name and date of birth are completed.
- For the current I-9 form, the Social Security number is voluntary except for employers who participate in the E-verify program.
- Ensure the employee has identified his or her immigration status and has signed and dated the form.
- The preparer or translator section is only to be completed if someone other than the employee completed section 1 on behalf of the employee.
- Ensure that the proper document has been entered into the proper list. For example, ensure that a List B item is in fact listed under List B and not List C or List A.
- Ensure that all the required information is entered for each document.
- Ensure that the documents included satisfy the requirement to not only provide proof of identity, but also to provide proof of eligibility to work in the U.S.
- Ensure that the certification has been completed and a representative of the company has signed and dated the form.
- This section should be completed only if the employee’s work authorization expired or if the employee has been rehired. It can also be completed if the employee had a name change, but this is not required. In most cases, section 3 will be blank.
- Please note: expired permanent resident cards and List B documents from the I-9 do not need to be reverified.
Correcting Errors: As you work through each incorrect I-9, use the Handbook for Employers: Instructions for Completing the Form I-9 to help you determine how to correct each error. Per the handbook: “The best way to correct Form I-9 is to line through the portions of the form that contain incorrect information, then enter the correct information. Initial and date your correction. If you have previously made changes on Forms I-9 in White-Out instead, USCIS recommends that you attach a note to the corrected Forms I-9 explaining what happened. Be sure to sign and date the note”.
Retaining I-9: Once an employee is terminated from employment, employers are required to retain I-9s for three years after the employee’s date of hire or for one year following his or her date of termination, whichever date is later. You may destroy all I-9s of terminated employees that are past their retention period.
Completing the Audit: Once you have followed the steps outlined above, you would have taken one step forward in complying with existing regulation in filling and retaining Form I-9. Conduct an audit every year to close all gaps in your company. In moments of doubt refer the help document provided by USCIS, Handbook for Employers: Instructions for Completing the Form I-9 at any stage of the I-9 process. A best practice that can be followed is to write down the steps of the I-9 audit and follow them annually.
EMPTrust can help you with your I-9 and E-Verification process. EMPTrust’s software application allows companies to manage I-9 forms and seamlessly integrate with employment eligibility verification (E-Verify) all at one go.