The I-9 audit process can be stressful, especially when employers are unprepared. Here’s what employers can do to successfully navigate the I-9 audit process and steps they can take to protect themselves in the event of a surprise audit.

What Is an I-9 Form?

Form I-9, Employment Eligibility Verification, is used to verify employment eligibility for people who work in the United States. Employers must have an I-9 form on file for every person they hire, regardless of their immigration status. The I-9 form has been mandatory for every new hire since the Immigration Reform and Control Act of 1986. 

How Employees Complete I-9 Forms

New employees must complete the first page of an I-9 form by their first day of employment. It’s very simple for employees to complete the document if they are United States citizens. 

Lawful permanent residents and visa holders with Employment Authorization Documents (EAD) should bring their immigration documents for reference. To complete this page, they will need their Alien Registration Number (ARN) provided by USCIS and the dates on their work authorization documents.

If the employee needs a preparer or translator, this person will have to help them complete section one of the I-9 form and sign the bottom portion. If the employee completed the section independently, they will check the box stating they completed it independently and can leave the remaining portion blank.

How Employers Complete I-9 Forms

Employers must complete section two of the I-9 form within three days of the employee’s first work day. Employers are required to examine documents from a list of acceptable documents to verify that the information provided by the employee is true. 

The I-9 form contains three lists of acceptable documents. List A documents can be used to verify both identity and employment eligibility. This includes documents like U.S. passports or USCIS documents that indicate citizenship status. You only need to review one List A document. 

If the employee doesn’t have a List A document, you need to review one List B document and one List C document. List B documents establish identity, like a driver’s license or an ID card issued by a federal agency. List C documents establish work eligibility, like a social security number or a certified United States birth certificate. 

Retaining I-9 Forms

Employers must securely keep I-9 forms for a minimum of 3 years after they hire an employee or one year after a former employee parts ways with the company, whichever is longer. It’s best to keep I-9 forms for as long as possible in the event that an official agency requests to review them. 

There are no consequences if the required time period has passed and you no longer have an employee’s I-9 form. You can destroy the document after the required time period ends securely.

What Is an I-9 Audit?

An I-9 audit is an audit conducted by immigration officials to assure that every employee of a business has proper work authorization, like a valid green card or Employment Authorization Document (EAD). These audits can occur at any time. Immigration officials do not need permission from the courts or an official warrant to conduct an I-9 audit.

Officials will send a document called a Notice of Inspection (NOI) to employers at least three days before the audit. Employers only have three business days to respond and prepare. They will not be granted extensions and cannot decline to participate.

The audit can be conducted in one of two ways. Officials will either require that employers submit relevant documents to immigration authorities, or officials will physically come to an employer’s office and review the documents themselves. The notice will specify how officials intend to conduct the audit.

Are I-9 Audits Mandatory?

If immigration officials working with Immigration and Customs Enforcement (ICE) or any branch of the U.S. Department of Homeland Security (DHS) notify an employer that they are being formally audited, the process is mandatory. Employers have to comply.

There are also internal audits, which are not mandatory. Some employers choose to conduct their own I-9 audits voluntarily. There may be benefits to periodically conducting voluntary internal audits.

Why Should an Employer Conduct an I-9 Audit?

Conducting voluntary self-audits can signal “good faith” to immigration authorities. If you live in an area with a high population of documented or undocumented immigrants, there’s a chance you will be required to comply with a mandatory audit. 

If you have records that show you’ve conducted voluntary audits properly, this signifies to immigration authorities that you’ve made an effort to remain compliant with the law. If any issues are found during a mandatory I-9 audit, they will consider that you’ve tried to prevent them.

Note that if you begin an I-9 audit, you have to see the process through to the end in a timely manner. If it’s ever discovered that you began an audit, found issues that needed to be addressed, and never remedied them, you may face consequences. You’re legally liable when you discover an I-9 issue and fail to take appropriate action.

If there’s any chance you will run out of time, money, or manpower before you can complete your audit, you shouldn’t start one. Knowing of an issue and not swiftly resolving it makes you culpable.

Are I-9 Audits Discriminatory?

The I-9 audit process cannot be considered discriminatory if it’s conducted by immigration officials. If you’re worried about the optics of a mandatory audit in your workplace, you shouldn’t be. If you receive a Notice of Inspection, it’s out of your hands.

Employers in the United States are responsible for providing safe workplaces that protect employees from discrimination. Some employers worry that the choice to conduct an I-9 audit may seem discriminatory or come across as an act of retaliation against an employee. This is a valid concern, and it’s something that employers must seriously consider before conducting an audit. 

Your audit may find that everything is above board. That’s an excellent scenario and the one you should always hope for. It may also make certain employees feel arbitrarily targeted over something that was never a problem to begin with. That’s an unfortunate scenario, and you should work to avoid it.

Before conducting an audit, consider the timing. Consider the day-to-day operations of your workplace, any social or disciplinary incidents that may have occurred within the past six months, and the current topics of discussion on the news. If it seems like an insensitive time to conduct an audit or if you fear that it may appear to be directly related to a specific incident, it’s best to wait.

What to Do When You Receive a Notice of Inspection

The first thing you should do when you receive a Notice of Inspection is contact your lawyer. Your lawyer may recommend that you speak with an experienced immigration attorney who is well-versed in the I-9 auditing process. It’s important to speak with a lawyer even if you genuinely believe you have nothing to hide and haven’t done anything incorrectly. 

Hire a Lawyer

An I-9 audit is a process that can have legal consequences, and in any situation that may have legal consequences, it’s always best to seek representation. Contacting an attorney doesn’t make you look guilty. It demonstrates that you’re prepared and that you take the process very seriously. Your lawyer can give you specific advice about your situation, and you should follow that advice.

Prepare Your Documents

In addition to following your lawyer’s instructions, you should prepare all I-9 documents and gather supporting documents demonstrating that your employees have the proper paperwork to work in the United States. 

You’ll need to have these documents ready, whether you must send them to authorities or if the authorities are coming to review them in person. U.S. Immigration and Customs Enforcement will give you at least three days’ notice before an I-9 inspection. The faster you begin to gather your documents, the easier it will be to prepare. 

Review Your Documents for Errors

Check your I-9 forms for errors or discrepancies. If any information on your I-9 documents is missing or incomplete, it needs to be fixed immediately. If you have any questions about the information provided by the employee, get clarification or request to see documents as soon as possible.

What Happens During an I-9 Audit?

Immigration officials will review all of your relevant documents. They may ask you for additional documents or more evidence if they have questions pertaining to a particular employee or hiring process. It’s best to have your lawyer present during an audit. 

If the audit concludes and everything is above board, that’s it. The process is completed. You may want to consider conducting voluntary audits once a year to show good faith in the event that you’re ever subjected to another mandatory audit.

If Auditors Find Issues With Your Business

If the auditors find significant issues during your audit, they may arrest and detain employees in your workplace. These employees will await deportation if they’re found in the country without proper documentation or lied on official paperwork. They may also face criminal penalties if they lied on official paperwork or provided fraudulent documents. 

Auditors may give you the impression that they believe you were aware that an employee was working for you without proper documentation or that you deliberately hired an undocumented person. You do not have to answer any questions or sign any documents. Remember: immigration officials may seem friendly but only do their jobs. Their main priority will always be to enforce the law, not to “help you out” or be your buddy. Let your lawyer speak for you, and don’t answer any questions.

If Auditors Find Issues With Current Employees

ICE officials will take matters into their own hands if they find an undocumented immigrant they believe to have committed fraud, committed a crime, or overstayed a visa. You are not liable for actions taken by an undocumented immigrant if you had no reason to be aware that they were undocumented and you followed proper hiring protocol. 

If the employee in question is not currently in your workplace, ICE may refer to the last known address you have on file for the employee and speak with them outside of your workplace. ICE will contact you if they need any more information about the situation. If they don’t contact you, there’s nothing for you to do. You aren’t responsible for providing the employee with legal assistance. 

What Happens After an I-9 Audit?

An I-9 audit will thoroughly check your workplace for any potential violations. You may be subject to fines if violations are found. The amount of the fine depends on the violation and whether or not the employee involved in the violation was an undocumented worker. Fines are usually higher in cases where ICE investigators have previously found violations within a company.

Companies are expected to pay the fines. In some cases, fines may be continuous until the issue is resolved. Companies can escalate the issue to the Office of the Chief Administrative Hearing Officer, where an administrative judge can review the fines and assess if they are fair. In many cases, fines can be substantially reduced after review. It’s almost always worth pursuing a review, and your lawyer can advise you of your best option.

The situation can be much worse if you’ve been accused of knowingly hiring unauthorized workers directly violating federal law. Follow your lawyer’s advice.

If no violations are found, you can resume normal operations without consequence. It’s a good idea to create a plan you can refer to if you’re ever subjected to another I-9 audit. It’s always better to be prepared.

Do You Need Help With an I-9 Audit?

The I-9 audit process has proven successful for immigration enforcement agencies, and fines relating to violations can be a substantial source of income for government agencies. Likely, I-9 audits will only become more common, and employers need to be prepared.

If you’re facing an I-9 audit, you would significantly benefit from the assistance of an experienced immigration lawyer. The Cohen, Tucker + Ades team has been helping corporations with immigration solutions and immigration law for over 40 years. We’re here whenever you need us. Contact us to request a consultation for your I-9 audit case.

Sources:

Immigration Reform and Control Act of 1986 – A Latinx Resource Guide: Civil Rights Cases and Events in the United States | Library of Congress

Form I-9 Inspection | ICE.gov

What is Employment Discrimination? | U.S. Equal Employment Opportunity Commission

Office of the Chief Administrative Hearing Officer | US Department of Justice