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I-9 Audits: What You Can Do To Manage Compliance

by Karyn H. Rhodes | SHRM-SCP, SPHR on Oct 7, 2021 4:21:24 AM

In 2019, Homeland Security Investigations (HSI) conducted 6,456 Form I-9 audits and issued over $14.3M in judicial fines, forfeitures, and restitutions against employers in violation of employment eligibility verification requirements. And there’s no sign the checks are slowing down. To avoid costly penalties, it’s essential to ensure your I-9 policies and procedures are compliant. But just what does that require?

At Complete Payroll Solutions, our certified HR professionals assist companies with the full employee life cycle, from hiring through termination. We understand exactly what you need to do when onboarding new employees to make sure you stay in compliance with employment laws and regulations like the Immigration Reform and Control Act. To help you comply with I-9 rules, here we’ll discuss:

  • What is a Form I-9 audit
  • Who audits I-9 forms
  • How will I be notified of an audit
  • What happens during an audit
  • How do I prepare for an audit

After reading this article, you’ll know the steps to take to ensure your processes will protect you in the event of an I-9 audit.

What is an I-9 audit?

I-9 audits verify that you’re following proper hiring processes, which includes verifying the identity and employment eligibility of new hires in the US. This requirement comes from the Immigration Reform and Control Act of 1986, which mandates that all employers complete an I-9 when bringing on a new employee.

The I-9 has three parts:

  1. Section 1: Employees fill out this section, which asks for information about their identity and employment eligibility.
  2. Section 2: You’ll complete this section after reviewing and verifying the employee information and documentation.
  3. Section 3: The third part, if needed, is for reverification and rehires such as when the employee’s documentation expires.

Who audits I-9 forms?

The audits are performed by the US Department of Homeland Security’s Immigration Customers and Enforcement (ICE). These officials will typically come to your workplace or at the location where your forms are stored.

How will I be notified of an audit?

If you’re selected for an I-9 audit, you’ll either receive a Notice of Inspection from ICE by certified US mail, return receipt requested, or investigators may just arrive at your business with the notice in hand. Once you receive this notice, you’ll have 3 business days to gather all your I-9 documentation. If you refuse or delay an inspection, you may be in violation of the law. That’s why it’s important to have all forms accurately filled out, properly stored, and easily accessible.

What happens during an I-9 audit?

During an audit, you’ll need to provide the I-9s and a current list of workers so they can compare and check for any discrepancies.

Accuracy is key here. So that means you need to make sure:

  • You are not missing I-9s
  • Part 1 and 2 of each form is filled out correctly as well as Part 3 if you’ve made any changes to employment status or are reverifying/rehiring
  • Everything is signed and dated

If, during the review, the officials find a problem, you’ll receive a notice in writing that will let you know the nature of the issue. There are several types of notices you could receive:

  • Notice of Suspect Documents: This notice advises the employer that ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
  • Notice of Discrepancies: This document advises the employer that ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
  • Notice of Technical or Procedural Failures: This type of notice identifies technical violations identified during the inspection and gives the employer 10 business days to correct the forms. After 10 business days, uncorrected technical and procedural failures will become substantive violations.
  • Warning Notice: This notice is issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
  • Notice of Intent to Fine (NIF): In certain cases, this notice may be issued for substantive, uncorrected technical violations and for knowingly hiring and continuing to employ unauthorized workers.

Fortunately, with regular internal audits, which we’ll talk about next, you can help avoid compliance missteps when ICE officials arrive.

How do I prepare for an audit?

The best way to prepare for an I-9 audit is to perform regular self-audits at your company. These reviews can also demonstrate a good faith effort that could spare you serious penalties in the event of a government audit so you’ll want to keep track of the dates you conduct your review.

During a self-audit, you should:

  • Confirm you have completed forms for all employees
  • Check for any expired immigration documents and have a docket system for reverifying
  • Ensure employees correct any errors. ICE recommends the employee draw a line through the error, enter the correct or omitted information, and initial and date the correction.
  • Review your process for making sure the forms are completed on time and correctly and properly stored, meaning, that they’re kept separately

You’ll also want to make sure your organization is prepared if you’re audited and if an ICE inspector arrives. That means training those who will be dealing with the officials that they:

  • Should not allow them to speak to employees
  • Can approve their request to use a space to review the files
  • May request a subpoena if the inspectors ask to see any other employee information from their personnel file

How to Stay I-9 Compliant

While an I-9 is required for everyone you hire in the US, there’s a lot more to compliance than just completing the forms. From specific timelines and documentation requirements to storage rules, there’s a lot to consider – and a lot at stake.

If you don’t have dedicated HR staff who can help ensure your onboarding processes are compliant, you may think about outsourcing to free you up from the time and worry involved in making sure your documents are in order.

Complete Payroll Solutions can be a good fit for your organization if you’re looking for:

  • Certified HR professionals who can keep you in compliance
  • Assistance with other tasks as well like recruiting
  • Online onboarding tools to streamline your processes and paperwork

Whether you decide to manage your I-9 compliance in house or partner with a provider, read our next article on five steps to avoid issues with your I-9s.


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