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Companies can’t afford to take a passive approach.
Review I-9 Files
Start by reviewing the I-9 forms that are currently on file with your company. If you have a large workforce, the best strategy is to pull the files from different periods of completion and assess a representative sampling of them—say, 20 to 50.
As you review the I-9s, answer the following questions:
If the answer to any of these questions is no, you’ve got work to do. For example, if one or more I-9s are missing altogether, plan remedial measures immediately—and ensure that you make it company policy to keep such information on file moving forward.
Keep in mind that your failure to collect the correct information the first time around is not the fault of your employees—so treat them with courtesy.
Just as you would with new hires, give employees the choice of which specific documents to present from lists A, B and C on the I-9 form. In other words, instruct workers to complete section 1 of Form I-9 and present either one document from list A on the back of the form or one from list B and one from list C.
While only valid current documents should be accepted, there are multiple versions of popular documents (such as Social Security cards) in circulation. Their appearance varies depending on the issuing agency (e.g., the Social Security Administration, which has been under two different departments and has also functioned as an independent agency) and the time of issuance.
Thus, it’s important to exercise good, nondiscriminatory judgment and give workers ample opportunities to present alternative documents if their first choices do not comply with the I-9 requirements.
When corrections to the forms are needed, start making them before government auditors arrive with a subpoena. But proceed with care because corrective measures must be completed properly in order for them to count in your favor.
All corrections must be made by crossing out incorrect data or adding missing information onto I-9 forms and adding the initials of the individual (either the employee or the employer) making the corrections and the date they were made. Correction fluid such as Wite-Out may not be used on I-9s, and these forms also cannot be backdated. Who-does-what matters as well: Section 1 revisions can be made only by an employee, and section 2 can be modified exclusively by an authorized representative of the company.
If your company is not part of
E-Verify—a voluntary Internet-based program to confirm work authorization for new hires—you may want to consider joining.
The possibility of an audit always looms. An audit can occur randomly or it could be based on a complaint filed with one of the government agencies. No matter how well your I-9 files are kept, be sure to accept the full three-day notice period that auditors are required to provide before collecting the I-9 files for review. Consult with your legal counsel about the best course of action and remedial measures to take after a subpoena has been served.
A few key steps to remember when getting ready to submit the I-9 files: Maintain copies of everything you send to the government, assure the auditors that every item on the subpoena has been submitted (and send nothing extra!), and confirm the auditors’ contact information so that you or your counsel can get in touch if needed.
Remember, the actions you take during and after the audit can either increase or decrease your chances for repeat reviews. So once the I-9 files are submitted for review, the time is right to evaluate the work you just concluded.
Were there many problem I-9 files? If so, were the deficiencies of a technical or a substantive nature? While self-auditing, did you discover questionable I-9s, and do you anticipate the auditor returning with findings of unauthorized employment, and potentially having to discharge employees? Addressing these issues before the Notice of Intent to Fine is delivered in a few weeks or, in some cases, months can help with your workforce planning.
The experience may also signal that it is time to organize immigration compliance training for HR and legal department employees. That way, the next time the auditors come knocking, you’ll be ready for them.
Irina Plumlee is the immigration practice group leader in the Dallas office of Munsch Hardt Kopf & Harr. She can be reached at
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