What You Need to Do to Prepare Your Company for an I-9 Audit

By Jessica Cook

The U.S. Department of Homeland Security’s Immigration Customs and Enforcement (ICE) continues to issue Form I-9 Notices of Inspection to businesses across the nation.

In fiscal year 2012, ICE served 3,004 Notices of Inspection to businesses, totaling over $12 million in fines. Additionally, ICE made 520 criminal arrests tied to worksite enforcement investigations. These criminal arrests involved 240 individuals who were owners, managers, supervisors or human resources employees.

The Notices of Inspection require employers to allow ICE to inspect their I-9 forms to determine compliance with employment eligibility verification laws. Once the Notice of Inspection has been issued, the targeted employer has three days to provide ICE with the company’s I-9 forms to be reviewed.

Penalties for I-9 errors

In addition to I-9 forms for current and recently terminated employees, employers will be asked to turn over payroll records, list of current employees, and information about the company’s ownership.

Civil penalties for errors on the I-9 form can range from $110 to $1,100 per violation. Civil penalties for knowingly hiring and continuing to employ unauthorized workers range from $375 to $3,200 per violation for first time violations.

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In determining penalty amounts, ICE considers five factors: size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers and history of previous violations.

How to limit your company’s exposure

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

  • Ensure that you are using the correct version of the I-9 form. U.S. Citizenship and Immigration Services recently released a new version of the I-9 form. Beginning May 7, 2013 only the 03/08/13 version of the I-9 form will be accepted.
  • When completing the I-9 form for a new hire, the employee must complete Section 1 before starting work on the first day and you must complete Section 2 and the Certification by the end of the third business day.
  • Do not engage in discrimination or document abuse when completing the I-9 process by requiring the employee to provide specific documents or more documents than minimally required.
  • Do not accept any document with an expiration date that has passed.
  • Timely 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. Do not re-verify U.S. passports or passport cards, Permanent Resident Cards or List B Identity documents.
  • 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.
  • Regularly conduct self-audits. Correctable errors on the I-9 form should be fixed, the change should be initialed and dated, and the words “Per Self Audit” should be placed beside the correction.
  • 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.

This was originally published on Fisher & Phillips Cross Border Employer Law blog.

Jessica Cook is an associate in the Atlanta office of the law firm Fisher & Phillips, and a member of the firm's Global Immigration Practice Group. Her practice is focused on immigration and nationality law, including visa work, handling both temporary and permanent visa cases, as well as advice regarding I-9 compliance, discrimination, and document abuse provisions of the Immigration Reform and Control Act of 1986. Contact her at jcook@laborlawyers.com.

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