Preparing for an I-9 Audit

By Trent Cotney.

Here are the steps you need to know in order to prepare for an I-9 audit.

Hiring new workers is a critical task. And as an employer, you are likely aware you must follow many legal steps. One of those steps is completing an I-9 form. This requirement was initiated in 1986 when the Immigration Reform and Control Act was passed. It requires all U.S. employers to use the I-9 to check the identities of new workers and verify their employment authorization.  

There may be times when you decide to conduct an internal I-9 audit. Or you may be subject to an I-9 audit by Immigration and Customs Enforcement (ICE). This agency is part of the U.S. Department of Homeland Security. The audit process ensures that you are following best practices and that your workers are legally allowed to work in this country. Although that process may sound nerve-wracking, it does not need to be. There are several tactics to help you get ready:

Have a system 

Be sure to have a consistent hiring process. Follow the same steps for each new employee so you do not overlook any essential requirements.  

Verify documentation 

When you hire new workers, carefully check their identification and records. Ensure that you receive original documents and not copies. Look at the expiration dates, and do not accept any expired documents. As you review the documentation, be careful not to question a new employee’s citizenship. You should request only the items required by the I-9. If you ask for more details, you could be perceived as discriminatory. 

Check every form 

Before you start the onboarding process, ensure you are using the current I-9 form. Verify that all sections are complete and signed. Simple mistakes or omissions can result in legal questions or fines. 

Retain your records 

Once you have completed the I-9s and brought new employees on board, keep those records safe. Being able to produce accurate and complete records is an integral part of any audit. Store all your I-9 forms in a place where they are protected and accessible. Some companies opt to safeguard their I-9 files in secure folders, with one for past employees and one for current employees. Remember, you are required to retain I-9s for three years after the hire date or one year after termination. 

Update your files 

Employees can come and go, so be sure your roster is constantly updated. If ICE officials conduct an audit, they will compare your employee list to all I-9 forms.  

Maintaining updated I-9 forms can seem stressful, but it is essential to be prepared. Before you face an ICE audit, you may want to run your own practice audit. You could also take part in a compliance audit with a legal professional. These strategies will help you identify any issues and rectify them before ICE discovers them. 

If you do a practice run, carefully review your records. Compare all your I-9 forms to your employee roster. Are any documents missing? Are there any inconsistencies? Are all sections completed and signed? If you discover any errors, be sure to correct them as soon as possible. 

If you choose a compliance audit, ask a legal team to assist. An experienced employment attorney can check your records, point out potential problems, and guide you in making adjustments. This process could be time-consuming. But it will help you be ready if ICE decides to schedule an I-9 audit for your company.  

The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. 

Trent Cotney is a partner and Construction Practice Group Leader at the law firm of Adams and Reese LLP and NRCA General Counsel. You can reach him at trent.cotney@arlaw.com or call 866.303.5868