Staying on top of Form I-9 might seem like a headache, but it could save you thousands of dollars. While the total number of I-9 audits remains relatively low, Immigration and Customs Enforcement (ICE) still might serve your business an audit. Before that happens, though, take the time to ensure that your documentation is in order and up to date.
If you’re not sure you’re prepared for a Form I-9 audit, you’ll want to play it safe and review your current employees’ documentation. Fines and penalties for failed I-9 audits can run into tens of thousands of dollars, and repeated willful law violations could even lead to criminal prosecution in rare cases.
Here’s a look at the I-9 audit review process and advice from experts on how to proactively prepare for an I-9 audit in case your business receives a notice of inspection from ICE.
Employers that hire employees in the United States must fill out and maintain the federal government’s Form I-9, demonstrating the work authorization status for each employee.
While laws vary from state to state, employers must verify employee documents in person, not via video conference. To verify remote employees, you can use one of the following workarounds: (1) designate a remote company representative, trusted agent or lawyer, (2) allow two remote employees to verify each other’s documents or (3) invite remote employees for on-site training.
Businesses that utilize Form I-9 can be audited at any time. Once a company has been selected for an audit, they have three days to produce up-to-date documentation. During the audits, ICE inspectors review businesses’ documentation regarding work authorization for their employees.
When you receive a notice of inspection, you have three business days to produce the I-9 forms for each employee. The government agency may also ask you to supply supporting documentation, including a copy of the payroll, lists of current employees, articles of incorporation and any related licenses. The agency then reviews the forms and issues either a violation or a compliance letter.
Although employers must maintain and update these records accordingly, many small businesses are not required to submit any documentation to the government unless they are subject to an audit. As a result, many small businesses allow their I-9 records to fall out of date and sometimes become inaccurate, said Henry Mascia, civil litigator, immigration attorney and partner at Rivkin Radler.
“Larger companies have HR professionals that are trained in this area, and they usually do a very thorough job, but small businesses often don’t have that sense of urgency,” Mascia said. “They don’t have to file the I-9; they just have to keep it in their office. So, a lot of companies don’t have the sense of urgency that they should, and [despite the surge in audits] we’re not seeing many of them do a better job.”
As with most regulations, proactively preparing for an I-9 audit is the best method to ensure compliance. You might never be targeted, but if you are, it is important to demonstrate a good-faith effort to comply with the law and remediate any errors you might have made in capturing or updating Form I-9 information.
You can help prepare your business by following these steps:
As you might have guessed, filling out the I-9 form is the first step in preparing for an audit, and it should be part of your employee onboarding process. Three parts of the document require completion by both the employee and the employer. Here’s how to tackle each section:
Mascia recommended conducting your own audit to catch errors that ICE would in a formal audit. For small businesses, this might mean going through every employee’s Form I-9, but for larger companies, selecting a handful of employees at random should be adequate. Internal audits also allow employers to update any I-9s that might be inaccurate or out of date. If any employees require reverification of work authorization, an internal audit could also be used to stay on top of that process.
“If an employer doesn’t have [a] system to remind the person responsible for reverifying that authorization, they could be inadvertently employing people not authorized to work,” Mascia said. “It’s one of those things that slips through the cracks. It can be a lot to keep track of, so having internal procedures for reverifying employment authorization is critical.”
Here are some steps to prepare for an internal I-9 audit:
Some common mistakes employers and employees make on I-9 forms are neglecting to fill out certain sections and not meeting specific deadlines. For instance, many professionals do not provide their signatures, the proper documentation or information, or USCIS number if they’re a “lawful permanent resident.” Review each section during your audit to catch any mistakes.
If you find any discrepancies in your audit, correct them right away. According to U.S. Citizenship and Immigration Services (USCIS), you simply need to draw a line through any inaccurate information, enter the correct information, and initial and date the correction.
If there are many errors, you might consider redoing the entire section and attaching it to the original form or simply starting from scratch with a new I-9. However, do not try to conceal any mistakes.
The USCIS recommends storing your forms either on-site or at an off-site storage facility and in a single format or combination of formats (such as paper, microfilm or microfiche, and digital). Because these forms hold sensitive information, ensure they’re in a secure-yet-accessible location.
I-9 forms must be kept for either three years after the employee’s hire date or one year after the end date of their employment (whichever is later).
The first thing you should do when you’re targeted by ICE for an I-9 audit is hire an attorney specializing in immigration to guide you through the process.
“[Employers] have to have an I-9 for each employee — they risk a fine if they do not — but they do not need to produce the I-9s on the spot,” said Kerry Bretz, senior partner at Bretz & Coven. “They have three days from receiving a notice of inspection. Use that time to retain counsel. Counsel will try to have the inspection either at the offices of ICE or the lawyer’s office, not the place of business.”
Bretz added that employers are not required to grant agency representatives access to their workplace unless the ICE inspectors have a warrant. Instead, employers or their staff should accept the notice of inspection, ask for a business card, and take three days to retain counsel and set a follow-up meeting.
During the meeting, Bretz said, employers should know a few rights and obligations.
“You need not answer questions, but if you speak, do not lie,” Bretz said. “It is a crime to lie to law enforcement. You can contest fines and have a hearing, often done telephonically. You can negotiate a lower fine or argue mitigating circumstances. However, once a business has been fined and told they must discharge unauthorized employees, they risk criminal penalties if they continue to employ the person or rehire them, knowing they are unauthorized.”
I-9 audits can result in two types of violations: technical and substantive.
As the name suggests, technical violations typically involve paperwork errors or discrepancies in certain information. These errors usually don’t result in fines, and ICE gives employers time to correct the technical errors and return the documentation. When left unrevised, however, technical violations could become substantive violations.
Substantive violations are the more egregious violations of the law, and these typically result in a fine depending on the nature of the violation. These violations include repeated and unresolved errors on Form I-9, the willful distortion of facts, or the submission of false documentation to ICE. The agency maintains a matrix of ranges for fines related to various violations.
I-9 errors need to be corrected by the person who completed the form. Section 1 should be fixed by employees, while Section 2 and Section 3 should be fixed by the employer or company representative who certifies such documents.
I-9 audits vary in the levels of fines they can impose. Depending on the severity of an employer’s violation, fines can reach tens of thousands of dollars per employee. ICE could even begin criminal proceedings for employers that repeatedly and knowingly violate the law.
The ICE website maintains information on what an employer might be subject to pay for I-9 violations. These are the fees listed on the Federal Register table:
Knowingly hiring and continuing to employ violations
$627 – $5,016
$5,016 – $12,537
$7,523 – $25,076
0% – 9%
10% – 19%
20% – 29%
30% – 39%
40% – 49%
50% or more
Sammi Caramela and Adam Uzialko contributed to the reporting and writing in this article. Source interviews were conducted for a previous version of this article.