Employers in the United States are required to verify the employment eligibility of their employees by completing and maintaining Form I-9, Employment Eligibility Verification. While not required by law, an employer may conduct an internal audit of Form I-9 records. Conducting regular self-audits of Form I-9 records can help employers identify and correct compliance issues to help mitigate risks and liability associated with potential violations.
When conducting an I-9 self-audit, it is important for employers to follow best practices to ensure compliance with immigration laws and regulations while steering clear of discrimination. Conducting improper processes in the I-9 audit can itself create exposure to liability. The following are some best practices that, together with the guidance and oversight of PLG legal counsel, can help ensure a proper I-9 self-audit while safeguarding against discrimination or other violations:
Scope and Consistent Standards: An employer may choose to review all Forms I-9 or a sample of Forms I-9 selected based on neutral and non-discriminatory criteria. If a subset of Forms I-9 is audited, the employer should consider very carefully with their PLG counsel how it chooses Forms I-9 to be audited to avoid discriminatory or retaliatory audits, or the perception of discriminatory or retaliatory audits. The employer should consider how it will document its communications with employees and how it will ensure consistent standards when addressing any Form I-9 deficiencies revealed by the audit. Internal audits should not be conducted on the basis of an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason.
Check for Completeness and Accuracy: Verify that all required fields on the Form I-9 are completed accurately, including information on employee identity and employment authorization documents, and that all necessary documents are presented and recorded correctly. Documentation presented for Section 2 of the Form I-9 is sufficient as long as the documentation was acceptable under the requirements of the Form I-9 in effect at the time the Form I-9 was completed. An employer should never request specific documents or more documents than required. The employer should not backdate the Form I-9. An employer must give an employee the option to present acceptable documentation of the employee’s choice to bring the Form I-9 into compliance with the INA. When a Form I-9 does not reflect that the employee provided sufficient documentation upon hire or reverification under Form I-9 rules current at the time of hire or reverification, an employer should ask the employee to present documentation sufficient to meet the requirements of the current version of the Form I-9. The employer should staple the completed and signed Section 2 or 3 of the current version of the Form I-9 to the employee’s previous Form I-9, together with a signed and dated explanation of the corrective action taken.
Communicating with Employees: Inform employees in writing that the employer will conduct an internal audit of Forms I-9, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive. When a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency.
Making Corrections to Form I-9: The employer should provide the employee with copies of his or her Form I-9, any accompanying Form I-9 documents, and any other documentation showing the alleged deficiency. An employer may not correct errors or omissions in Section 1. If an employer discovers an error or omission in Section 1 of an employee’s Form I-9, the employer should ask the employee to correct the error. The best way to correct the error is to have the employee: To correct the form, draw a line through the incorrect information; enter the correct information; and initial and date the correction. An employer may only correct errors made in Section 2 or Section 3 of the Form I-9. The best way to correct the form is to draw a line through the incorrect information; enter the correct or omitted information; and initial and date the correction or omitted information. An employer should not conceal any changes made on the Form I-9—for example, by erasing text or using correction fluid, nor should the employer backdate the Form I-9.
Using Existing Form or New Form I-9: To correct multiple recording errors on the form, you may redo the section on a new Form I-9 and attach it to the old form. A new Form I-9 can also be completed if major errors (such as entire sections were left blank or Section 2 was completed based on unacceptable documents) need to be corrected. An employer should attach an explanation of the changes made to an existing Form I-9 or the reason a new Form I-9 was completed, and sign and date the explanation. Be sure not to conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration law. Without sufficient justification, requiring an existing employee to complete a new Form I-9 may raise discrimination concerns.
Handling a Missing I-9: If a Form I-9 was never completed or is missing, the current version of the Form I-9 should be completed as soon as possible. If an original Form I-9 exists but either Section 1 or Section 2 was never completed, the employee (for Section 1) or the employer (for Section 2) should complete the section as soon as possible. In both scenarios, the employer should not backdate the form, but should clearly state the actual date employment began in the certification portion of Section 2. The employer should attach a signed and dated explanation of the corrective action taken.
How to Address Errors and Omissions on Form I-9 for a Former Employee: If the employee is no longer working for the employer, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explaining why corrections could not be made (e.g., because the employee no longer works for the employer).
Documents that Do Not Appear Genuine or Related to the Employee: An employer is required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation. While an employer may specify that the particular document called into question by the internal audit may not be used again for Form I-9 purposes, the employer should not request specific documents. The employee should be permitted to present his or her choice of other documents, as long as they are acceptable for employment eligibility verification purposes. If an employer subsequently concludes that a document does not appear to be genuine or to relate to the person who presented it, the employer should address its concern with the employee and provide the employee with the opportunity to choose a different document to present from the Lists of Acceptable Documents. An employer may not conclude without foundation that a photocopy of an employee’s Form I-9 documentation is not genuine or does not relate to the individual. In the context of an internal audit, for an employer that has photocopied Form I-9 documentation, it should recognize that it may not be able to definitively determine the genuineness of Form I-9 documentation based on photocopies of the documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear. Furthermore, an employer cannot use I-9 audits to discriminate against, retaliate against, and/or intimidate employees and should not terminate employees, unless the employee cannot demonstrate identity and/or work authorization.
Reasonable Amount of Time for Employees to Address Any Deficiencies: The employer should provide all employees who claim they are work-authorized with a reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy. The 90-day period set forth in U.S. Department of Homeland Security Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (Aug. 15, 2007) was rescinded, so the 90-days is not a legally binding regulatory requirement. An employer should recognize that some documents may take up to or more than 120 days to obtain. The reasonableness of a timeframe should be determined on a case-by-case basis. Factors to consider include, for example, the specific nature of the deficiency and the time required for alternative Form I-9 documentation to be obtained under the circumstances. In addition, all employees who are asked to present alternative documentation should be given the choice of acceptable documents to present (they do not have to use the same document used previously) and should not be treated differently based on perceived or actual citizenship status or national origin. Some employees may not have the same document(s) in their possession that they originally presented for the Form I-9, either because they have misplaced the document(s), their immigration status has changed, the document has since expired, or for other reasons. The 10-day period is an ICE policy that applies solely when ICE has issued a Notice of Suspect Documents letter. In these cases, ICE has already determined the employee at issue does not appear to be presently work-authorized. An employer should be sure to allow or disallow additional time based on objective non-discriminatory and non-retaliatory criteria and without regard to an individual employee’s citizenship status or national origin. The employer should document the basis for its decision and continue to document the efforts of the employee to obtain acceptable Form I-9 documentation.
Unauthorized Currently Employees: The employer sanctions provision of the INA makes it unlawful for a person or other entity to continue to employ the individual knowing that he or she is, or has become, unauthorized for employment. By regulation, “knowing” includes not only actual knowledge, but also knowledge which may be fairly inferred through a notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about an individual’s unlawful employment status. While tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. An employer is cautioned against responding to tips that have no indicia of reliability, such as unsubstantiated, retaliatory, or anonymous tips. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employee based on unreliable tips may be unlawful, particularly if the tip was made based upon retaliation, the employee’s national origin or perceived citizenship status.
Employees Previously Not Employment-Authorized: In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has subsequently presented acceptable documentation(s) and is currently employment-authorized, the employment eligibility verification provisions do not require termination of employment. An employer may continue to employ the employee upon completion of a new Form I-9 noting the authorizing document(s), and should attach the new Form I-9 to the previously completed Form I-9 together with a signed and dated explanation.
Retention Requirements: Confirm that Form I-9 records are retained in compliance with retention requirements for the required retention period. The general rule is to keep the Form I-9 for three years after the date of hire, or one year after the date employment is terminated, whichever is later. Employers are not required to retain copies of the documents presented by employees to establish their identity and work authorization during the Form I-9 process. However, if copies are made, they must be retained with the Form I-9.
Implement Ongoing Compliance Measures: Develop consistent policies, procedures, and internal controls to prevent future compliance issues, promote ongoing compliance with I-9 requirements, and establish a culture of compliance and non-discrimination within the organization. Consistency helps ensure avoidance of discrimination. Standing operating procedures should help ensure consistency such as whether documents provided for I-9 are to be kept or not; if maintained, they should be consistently retained with the Form I-9.
Self-audits are considered good-faith attempts at demonstrating a commitment to legal compliance and ethical business practices. By following these best practices with the guidance and oversight of PLG counsel, employers can conduct effective and thorough I-9 self-audits that will address compliance issues proactively to successfully mitigate liability.
About Peter F. Asaad, Esq.:
Peter F. Asaad, Esq. is a Partner at PLG with twenty years of experience in corporate immigration law. Specifically, he has substantial expertise addressing work authorization needs and corporate compliance, including hiring and retention under appropriate visa categories for employment in the U.S. to maintain work authorization, and I-9 compliance to stay clear of costly regulatory violations.
Mr. Asaad has extensive experience developing and managing corporate immigration programs for multinational companies. His background includes representing corporations to develop and manage streamlined H-1B, L-1A and other temporary work visas as well as permanent status through green card sponsorship while maintaining corporate compliance.
Mr. Asaad is sought out by organizations due to his reputation for proactive management, responsive communication, and his deep understanding of immigration law to ensure compliance and a streamlined process. Indeed, he has been recognized by the American Bar Association (ABA) “as one of the nation’s leading” attorneys in the field of immigration law and by the American Bar Foundation (ABF) as among the “top one-third of one percent” of the lawyers in Washington, DC. He is listed as a top Corporate Immigration Lawyer by Who’s Who, and ranked a top-rated AV lawyer by Martindale-Hubbell. He has also been recognized among Washingtonian Magazine’s “Top Lawyers” in immigration law for over a decade and listed in The Best Lawyers in America®: Immigration Law. Mr. Asaad is past president of the American Immigration Lawyers Association (AILA), DC Chapter, where he furthered the education needs of over 900 immigration lawyers. Prior to holding this position, Mr. Asaad served as Co-Chair of the American Bar Association (ABA) Immigration Litigation Committee for several years and served as Chair of the DC Bar Immigration & Human Rights Committee. Mr. Asaad developed and taught an advanced course on business immigration as Adjunct Law Professor at American University, Washington College of Law. Mr. Asaad is the architect of the IN2NYC program and former Special Counsel to New York City. On behalf of the Mayor of New York City and the New York City Economic Development Corporation (NYCEDC), in partnership with the City University of New York (CUNY) and New York University (NYU), he developed and launched IN2NYC, the first municipal visa program in the nation of its kind designed to help international entrepreneurs collaborate with universities to create jobs in the United States.
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