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Employer Compliance: Conducting an I-9 Self-Audit

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The Department of Homeland Security (“DHS”) has made headlines in recent years recent with its raids of large and small companies investigating violations of laws regarding the hiring of unauthorized workers. DHS has imposed criminal sanctions, including significant fines on these companies, as well as their owners and officers, for knowingly hiring unauthorized workers and also for simple paperwork violations regarding the Employment Verification Form, Form I-9. The potential for liability and the possible sanctions for these violations can be reduced with appropriate training and internal audits.

Since November 6, 1986, all employers in the U.S. have been required by federal law to maintain Form I-9 for each employee, verifying the employee’s identity and ability to work in the U.S. Employers are obligated to review original documents of identity and authorization when completing Form I-9. At the same time, employers are prohibited from discriminating against new hires or applicants by insisting that only certain documents be used to establish identity and authorization, or by refusing to hire anyone other than a U.S. citizen. Employers must have the same procedures for all employees, regardless of nationality or citizenship.

Employment Verification Form I-9 Requirements.

The Form I-9 appears very simple, however, there is potential for many legal problems.  Employers should consider the following list of requirements as the Forms I-9 are completed:

  1.  Section 1 must be completed on or before the date of hire;
  2. Section 2 must be completed, signed, and dated by a company representative on or before the end of the employee’s third day of employment;
  3. The employee must present either:
    1.  a List A document, which provides proof of both identity and eligibility to work, or
    2.  a List B document, which provides proof of identity and a List C document, which provides proof of eligibility to work;
  4. The company representative may not suggest which documents should be presented. Instead, the representative only may provide the list of alternatives;
  5. The company representative must review the documents presented and complete each relevant line in Section 2;
  6. If an employee’s work authorization must be re-verified, Section 3 must be completed, not a new Form I-9 completed (unless Section 3 has already been completed, then Section 3 on a new I-9 should be completed, with the individual’s name written in Section 1 and the two forms should be kept together);
  7. If corrections are necessary, the employee should make corrections in Section 1 and the employer should make corrections in Sections 2 and 3, by crossing out the incorrect information, adding the correct information, and initialing and dating the change. An annotation, such as “corrected during self-audit,” should be added. An incorrect form should not be destroyed and incorrect information should not “whited out”;
  8. All I-9s should be kept until the later of (a) 3 years after the date of hire; or (b) 1 year after date of termination (assuming there is no formal enforcement or audit proceeding in process);
  9.  The employer must decide whether it will copy the employee’s verification documents.  The employer is authorized, but not required, to keep copies of the verification documents.  If copies are kept with the Form I-9, it creates a paper trail for the employer. That paper trail could establish the employer’s efforts at good faith compliance; however, if the documents do not appear valid on their face, the employer could be said to have “known” the individual was not authorized to work.

I-9 Self-Audits.

Each company should have a policy in place requiring regular self-audits of its Forms I-9. That self-audit may be performed either by an employee of the company who has been thoroughly trained on I-9 and worker verification requirements, or by outside immigration counsel. An audit of a company’s Forms I-9 should consist of the following:

(1) verification that all of the employees currently on the company’s payroll have a Form I-9 on file;

(2) verification that all terminated employees who are required to have a Form I-9 on file do;

(3) verification that Forms I-9 on file are properly completed;

(4) completion of an audit form on each incorrect Form I-9 to identify the error;

(5) correction of all incorrect Forms I-9 that are capable of being corrected;

(6) review of current policies and procedures to reduce future errors.

As a result of the increased enforcement by DHS of an employer’s obligation to verify its employees’ eligibility to work, as well as the increased complexity of the current I-9 form itself, it is more important than ever that an employer ensure that it is in compliance with its Form I-9 requirements.  An internal audit of Forms I-9 currently on file is a good way for employers to identify existing compliance issues and take steps to correct any errors in an effort to minimize future liability for non-compliance.

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