Is Your Company Next? 10 Tips to Help Prepare for an ICE I-9 Audit

In June, the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) issued a strategic plan for work site enforcement through fiscal year 2014. One of the key initiatives of the plan is enforcement of U.S. immigration-related employment laws, in particular pursuing employers who knowingly violate the laws.

ICE intends to create a “culture of compliance” through education, I-9 audits and investigations, and criminal and civil sanctions. Certain industries, such as agriculture, construction, hospitality, and food processing, can expect to be targeted for these actions, although no company will be immune.

Here are 10 tips to help protect your company and limit exposure for I-9 violations:

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  1. Keep I-9 forms in a separate binder for current employees and another for terminated employees. Do not keep I-9 forms in employee personnel files.
  2. Print a list of all current employees, including name and date of hire. Ensure that you have an I-9 form for all current employees hired after November 6, 1986. If you discover that you are missing an I-9 form for a current employee hired after November 6, 1986, work with the employee in question and complete an I-9 form immediately.
  3. Ensure that you are using the correct version of the I-9 form. The current version of the I-9 form was issued on August 7, 2009 and may be downloaded from the U.S. Citizenship and Immigration Services website .
  4. When completing the I-9 form for a new hire, do not accept any document with an expiration date that has expired.
  5. Do not re-verify U.S. passports or passport cards, Permanent Resident or Resident Alien Cards, or List B Identity documents.
  6. Ensure that you re-verify expiring work authorization documents before they expire and do not allow an employee to continue to work after his or her work authorization document expires.
  7. Conduct a self-audit of your I-9 forms to make sure they are correctly completed. Do not use correction fluid to make corrections. Strike through the incorrect information instead and insert the correct information in or near where the information is required. Initial and date all corrections. Any corrections made to Section 1 of the I-9 form should be made by the employee. Any corrections made to Section 2 should be made by the employer representative – even if that person is not the person who originally completed Section 2 on behalf of the company. Many errors on the I-9 form may be corrected, however, failure to complete the form within the required time cannot be corrected.
  8. Do not engage in discrimination or document abuse when completing the I-9 form process. Do not require employees to provide a specific document or combination of documents to prove identity and work authorization just because they look or sound foreign. Allow the employee to select the documents he or she elects to provide you from the List of Acceptable Documents printed on the back of the I-9 form.
  9. If the document(s) presented by the employee is on the List of Acceptable Documents, reasonably appears to be genuine and relates to the person presenting it, you may accept that document to complete Section 2 of the I-9 form.
  10. Know your rights! If ICE appears to review your I-9 forms and conduct an audit, insist on a written Notice of Inspection and your right to have three business days before you turn over your original I-9 forms.

Work site enforcement and I-9 audits are going to continue to be the main tool used by ICE to ensure that employers are complying with US immigration laws. Your company may be the next one on ICE’s list.

Make sure that the individuals in your company who complete the I-9 process are properly trained and that you regularly audit I-9 compliance. Create your own culture of compliance and be ready to respond to an ICE audit with confidence.

Kim Thompson is a partner in the Atlanta office of the law firm Fisher & Phillips., and a member of the firm's Global Immigration Practice Group. Kim's practice focuses on immigration and nationality law, and includes extensive visa work, handling both temporary and permanent visa cases, as well as advice regarding compliance with the I-9, discrimination, and document abuse provisions. Kim is a member of the American Immigration Lawyers Association, the ABA-affiliated association for attorneys practicing immigration law. Contact her at kthompson @laborlawyers.com.

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