Are You Prepared for an I-9 Compliance Audit?

By Russell Ford September 15, 2017
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Companies need to stay on top of I-9 compliance, especially after the recent release of a new version of the form in an atmosphere of increased enforcement.

Employers are required to use the new version of the Form I-9 (dated 07/17/17) beginning Sept. 18.

The U.S. Department of Homeland Security's Immigration and Customs Enforcement (ICE) can examine your organization's records at will, so it is good practice to undergo regular I-9 compliance audits biannually.

These tips and cautionary tales will help prepare you for an I-9 inspection so that your company can avoid suffering a penalty from the federal government.

[SHRM members-only toolkit: Complying with Form I-9 Requirements]

Fill Out All Sections Properly

In an I-9 audit from ICE, accuracy is key. Sections 1 and 2 will be reviewed for accuracy, while Section 3 will be reviewed for accuracy only if changes have been made, such as employment status, reverification and rehires. Employers should be prepared to provide any necessary corrections to ensure compliance.

A construction company was recently penalized $228,000 for multiple compliance violations, including submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2. This is just one example of how taking the time to review all sections of the Form I-9 for accuracy and completion is absolutely vital.

Update Your Roster of Employees

Before the self-audit process begins, it is best to make sure that the roster of employees is up to date. Remember, all employees hired on or after Nov. 6, 1986, must have an I-9 filled out. During the audit process, I-9 forms will be matched up against the current roster of employees to check for any discrepancies. Most importantly, if you discover that an I-9 is not present for an employee, make best efforts to obtain one as soon as possible.

Have Valid I-9 Documentation

Now that you've reviewed the roster, check and see if all documentation is accounted for. Remember, documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.

All documents—List A or List B and List C—will likely be checked for validity. It is extremely important to review the process used to train your staff to identify documents that do not appear authentic or valid. Though you are not required to be experts in recognizing fraudulent documents, there is a "reasonableness" standard that you will be held to, and a failure to comply could result in fines and penalties.

Obtain All Necessary Signatures

Forgetting to sign the form is one of the most common mistakes made by both employees and employers. That's why it is crucial to carefully look over all three sections of the I-9 once it has been completed. Even simple record-keeping mistakes and omissions can result in huge fines, so make sure to give the forms one more look to ensure all signatures are obtained.

Unfortunately for an event-planning company, a simple, repeat error ended up costing them big. The company neglected to ensure that Section 2 of the I-9 included each employee's signature, along with additional incompletions. In total, it was found that they were responsible for more than 800 violations. And the total fine? A whopping $605,250.

Another national staffing company did not have the correct person signing for its remote workers, which resulted in a $227,000 fine.

While I-9 compliance may seem simple, it is full of hurdles that can cause serious issues for employers. Remember, an ICE Notice of Inspection can come at any time and the agency will want I-9 documentation within three business days, so organization is essential.

Russell Ford, J.D., is a business immigration attorney and co-founder of FordMurray, based in Portland, Maine. He may be reached at russell@fordmurraylaw.com

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