How employers can prepare for I-9 audits
Employers across the United States are legally required to ensure their workforce is authorized to work in the country. Form I-9, officially known as the employment eligibility verification form, is a critical part of this process. Properly completing Form I-9 for every employee—and securely storing and retaining these records—is essential. If you are contacted regarding an I-9 audit, staying calm and understanding the process can help protect your organization. This article will explain how to respond to a U.S. Citizenship and Immigration Services (USCIS) I-9 audit, how to prepare through internal audits, and how to properly correct any I-9 mistakes discovered along the way.
Understanding the I-9 audit process
When an employer faces an I-9 audit, it usually begins with a notice of inspection (NOI). This is an official notification stating that U.S. government officials will be reviewing the employer’s I-9 forms.
The NOI typically requires the following information:
- The original Forms I-9 for all employees within the scope of the inspection;
- A list of all current employees, including names; Social Security numbers (SSNs); dates of birth; and hire, rehire, and termination dates;
- Copies of state and federal quarterly wage and hour reports and/or payroll data for all employees covering the period of the inspection;
- Business information, including employer identification number (EIN); taxpayer identification number (TIN); owner’s SSN; owner’s address, telephone numbers, and email addresses; copies of articles of incorporation (if applicable); and copies of business licenses for all business entities related to the locations listed in the NOI;
- Copies of any and all correspondences from the Social Security Administration to the employer regarding mismatched or no-matched SSNs (known as “employer correction requests” or “requests for employee information” and commonly referred to as “no match” letters);
- Whether the company is a current or previous participant in E-Verify or the SSN verification service, and if so, providing a copy of the signed enrollment agreement; and
- Copies of all W2s remitted to the IRS for specified calendar years.
You will typically have three business days from receipt of the NOI to produce your Forms I-9 and any other requested documentation. Although it may seem like a short timeline, the best defense is to have your records in order before the notice ever arrives.
Internal I-9 audits
The most effective strategy for dealing with any government audit is proactive compliance. Conducting an internal I-9 audit before any official notice arrives will help you identify and correct mistakes in a lower-stakes environment.
Here are the steps you should take to conduct an internal I-9 audit:
Step 1: Gather all Forms I-9
Collect all Forms I-9 for current employees, as well as those for former employees if they are still within the required retention period. By law, you must keep Forms I-9 for as long as an individual is employed, and for either three years after the date of hire or one year after the date employment ends—whichever is later.
Step 2: Use a checklist
Employ a standardized checklist to verify that each form has been completed properly. Look for missing signatures, incorrect dates, missing or expired documentation details, and other compliance red flags. Here are things to keep an eye out for in each section.
Section 1: Employee information and attestation:
- Check that the employee’s full name, address, and date of birth are filled in correctly and legibly.
- Ensure the employee checked the correct box indicating their citizenship or immigration status.
- If applicable, confirm that the Alien Registration Number/USCIS Number or Form I-94 Admission Number is provided and valid.
- Confirm the employee signed Section 1 and dated it on or before the first day of employment (or no later than the first day of work).
- If the employee used a preparer or translator, check that the “Preparer and/or Translator Certification” is completed, signed, and dated correctly.
Section 2: Employer or authorized representative review and verification:
- Check that the document(s) provided (List A or List B and List C) are recorded correctly, including issuing authority, document title, document number, and expiration date (if any).
- Verify that the employer’s representative signed and dated Section 2 within three business days of the employee’s first day of work.
- Check that the certification includes the correct hire date.
- Make sure all required fields (employer business name, address, etc.) are filled in and legible.
Section 3: Reverification and rehires (if applicable):
For employees with expiring work authorization, ensure Section 3 was completed before their existing authorization expired.
If rehired within three years of the original I-9, check if Section 3 was used or if a new Form I-9 was completed (both options can be correct, depending on the situation).
Step 3: Document all findings
As you conduct your internal audit, keep a written record of what you find. Note both the mistakes and the corrective actions taken. This documentation shows good-faith compliance efforts if you are later questioned by USCIS or Immigration and Customs Enforcement (ICE).
Common errors on Form I-9 and how to correct them
Mistakes on Form I-9 range from minor typographical errors to significant omissions of required information. The process for correcting these mistakes is outlined by USCIS, and it’s crucial to follow the official guidance to avoid potential fines or sanctions. For more information, you can review USCIS’s official instructions on correcting Form I-9.
In general, the best course of action is to proceed with caution. There are rules governing who is permitted to correct certain errors, and the federal government expects employers to balance the need for I-9 correction with the potential burden it places on employees.
When planning your audit, and before attempting any corrections to forms, you should read the following guidance:
- USCIS M-274 Handbook for Employers, Chapter 9; and
- DHS and DOJ Joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.
While these resources may not answer all questions, you should consult them carefully as you make decisions about how to prioritize and conduct re-verifications, how to cure omissions of information, and how to make other types of corrections that frequently come up during internal audits.
Conclusion
Preparing for and responding to a USCIS (or ICE) I-9 audit can feel daunting, but it becomes significantly more manageable with a robust internal compliance program. Conducting periodic internal audits, correcting errors following official USCIS guidelines, and organizing your documentation go a long way toward minimizing liabilities.
