News media recently highlighted workplace raids by Immigration and Customs Enforcement agents (ICE).  Employers should know, however, that workplace raids affect far fewer employers and employees than another of ICE’s compliance enforcement methods:  the Form I-9 audit.  For that reason, employers should ensure they have properly completed Forms I-9 on file for employees in advance of receiving a Notice of Inspection (NOI) from ICE.

The Form I-9, also known as the Employment Eligibility Verification, documents employees’ identity and authorization to work lawfully in the U.S. The employee completes Section 1 (the section in which employees attest to their identity and citizenship status) on or before the first day of work, and a representative of the employer completes Section 2 (the section in which employers record the documents they reviewed for From I-9 compliance) within three business days of the date of hire upon receiving appropriate documentation from the employee.

ICE routinely audits employers’ Form 1-9 compliance to ensure employers maintain adequate documentation of workers’ identities and authorization to work in the United States. ICE may audit any employer regardless of industry or size. According to the New York Times, in July 2019 alone, ICE issued 3,000 NOIs, initiating Form I-9 audits with employers nationwide. In 2017, a USCIS Analyst stated in an interview with The Business Journals that approximately 76 percent of Forms I-9 contain an error that could result in a fine, which can range from $230 to $2,292 per form. 

When selected for audit, the employer will receive a NOI from ICE.  Employers have three days to provide the requested documents for inspection.  ICE may request documentation for current employees and former employees within the Form I-9 retention period-one year past the date of termination or three years past the date of hire, whichever is later.  Additionally, under California law, within 72 hours of receipt of the NOI, employers must provide employees with notice of ICE’s inspection.

The short turn-around time and potential for large fines create tangible incentives for employers to prepare for an audit in advance.

First, employers should ensure proper training for the representatives responsible for completing the Forms I-9 on their behalf.  As an initial matter, employers are responsible for using the most current Forms I-9, which is updated from time to time. The form must be completed timely, within three days of the employee’s first day of work.

Substantively, the representative must ensure the employee completed Section 1 of the Form fully and accurately. A key issue is understanding what documentation is required, which has changed over time. The representative must understand what to do when documentation is inadequate, e.g., not authorized by Section 2, expired, obviously fraudulent, or otherwise.  This is particularly important because, under California law, employers are prohibited from requesting more or different documents, or refusing to honor documents that reasonably appear to be genuine.

Second, employers periodically should conduct an internal audit of current Forms I-9 to ensure they were completed fully and accurately. The audit should ensure there is a Form on file for all active employees, the employee completed the required portions of Section 1, the employer representative recorded the identity and work authorization information for the employee in Section 2, and the employee is currently authorized to work in the U.S. The audit process must be completed in a non-discriminatory manner. That is, it cannot focus on particular employees based upon national origin or citizenship status. Employers intending an audit that does not include all Form I-9s should seek legal counsel regarding how to select the population to be audited.

After completing the Form I-9 internal review, employers must correct errors and omissions to mitigate risk.  Errors in Section 1 must be corrected by the employee; Section 2 errors must be completed by the employer representative. Any corrections should be made transparently; i.e., by striking through the original information and initialing and dating the correction.  Errors should not be “hidden;” e.g., by using correction fluid so that they are illegible. To minimize any perception of discrimination, employers should complete the entire audit before approaching employees about making corrections, and make all corrections during the same timeframe. Further, employers should provide each employee whose I-9 requires correction with a reasonable amount of time to make the correction, and should not take any adverse action against the employees without providing them that opportunity.

Finally, employers should have a process in place to ensure that Forms I-9 are updated, as needed.  To aid the process, and make it easier to produce the forms in case of an ICE inspection, employers should maintain Forms I-9 and supporting documents separate from other personnel documents.  Employers should have in place a way to calendar the expiration of expiring work authorization documents that were provided during the hiring process.  Upon expiration, the employee must provide updated documentation to the employer to demonstrate continued work authorization and the employer must record the information in Section 3 of the Form.  This often-overlooked compliance step will help employers ensure that they are not unintentionally continuing to employ individuals who are no longer authorized to work in the U.S.

There is nothing an employer can do to avoid an audit by ICE.  But by investing time in evaluating current Forms I-9 and related processes, as described above, employers can minimize the potential penalties and disruptions of an external Form I-9 audit.

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