In Depth: The Anatomy of an I-9 Audit

Gathering Necessary Documents

The audit begins with gathering all necessary documents related to the business’s hiring practices. These include:

Forms I-9 for all current and past employees who have been hired after November 6, 1986.
Payroll records to verify the employees’ dates of employment and confirm which employees should have completed I-9 forms.
Additional documents related to any employees who may have been hired through a third-party agency, as those records must also comply with the I-9 rules.

Rule to Note: Forms I-9 must be kept on-site and cannot be removed from the worksite except for certain situations, such as for an ICE inspection. This is required by 8 U.S.C. § 1324a(b), which mandates employers to maintain completed I-9 forms at the place of employment and readily available for inspection upon request by authorized officials.

Creating a Database of Employees and Past Employees

The next step is to create a comprehensive database that includes a list of all current employees and past employees who are subject to the I-9 requirements. This includes:

Employees who have been hired after the effective date of the I-9 form requirements (November 6, 1986).
Past employees must have their I-9 forms retained by the employer for at least three years after the date of hire or one year after the employee's termination, whichever is later (8 C.F.R. § 274a.2(b)(2)).

Ensuring that all employees' I-9 forms are included in the database allows the firm to assess whether all employees are in compliance.

Checking for Technical and Substantive Errors

The audit then proceeds with a thorough review of each I-9 form to check for both technical and substantive errors:

Technical errors include missing signatures, incomplete sections, or failure to properly record information (such as Social Security numbers or addresses).
Substantive errors refer to more serious issues such as failure to properly verify a worker’s authorization to work, including incorrect documentation or failure to properly reverify an employee’s work authorization.

These errors can expose the business to significant fines, especially if they are found to be part of a pattern of non-compliance.

Learning from the Audit to Maintain Ongoing Compliance

Once the audit is complete, we create a comprehensive report summarizing:

Errors found in the I-9 forms.
Potential penalties for those errors, including fines for technical violations and more substantial fines for substantive violations.
Necessary fixes that need to be made to correct the I-9 forms and improve the company’s compliance.

This report is an essential tool for businesses to understand the scope of their I-9 issues, the financial and legal risks involved, and the necessary steps to rectify the situation. We assist our clients in making any necessary corrections to the I-9 forms. For example:

Correcting technical errors (e.g., missing dates, signatures, or incomplete fields).
Filing amendments if the original documents are invalid or incomplete.
Re-verifying work authorization if an employee's work authorization has expired or was not initially verified properly.

It is important for employers to complete these updates promptly, as failure to correct errors can lead to more severe penalties.

Why It Is Important to Use an Experienced Immigration Attorney

An experienced immigration attorney can offer several critical advantages during the I-9 audit process:

Knowledge of Work Authorization Types: An experienced immigration attorney can accurately identify the various types of work authorization (e.g., U.S. citizens, lawful permanent residents, temporary work visas like H-1B or L-1, etc.) and ensure that each I-9 form is filled out correctly.
Current on the Latest Changes in Immigration Law: Immigration law is constantly evolving, and an experienced attorney will stay current with changes to regulations, such as updates to Form I-9, guidelines on document retention, or modifications to penalties.
Understanding ICE Enforcement Practices: An experienced immigration attorney is familiar with how ICE conducts investigations and inspections. They can help the business mitigate risks by ensuring that the audit and corrections are done in accordance with ICE’s enforcement practices.
Mitigating Penalties: In the event of an ICE investigation or audit, having an experienced attorney will help the company negotiate potential penalties. An attorney can guide the business in demonstrating good faith efforts to comply with I-9 regulations and reduce the financial burden.