The law prohibits employers from hiring anyone who is not legally authorized to work in the country. It is up to the employer to verify that their workers are eligible to work. This happens during the hiring process when the new employee completes Form I-9. Access an updated Form I-9: https://www.uscis.gov/sites/default/files/files/form/i-9.pdf.
As a part of the government’s comprehensive effort to combat unauthorized immigration, the Immigration and Customs Enforcement (ICE) Homeland Security Investigations’ audits of Form I-9 have increased by more than 65 percent and are expected to continue to rise. Any employer can be investigated, but the industries at higher risk are construction, manufacturing, hotels and restaurants.
What to expect if audited
The process of an I-9 audit begins with the delivery of a “Notice of Inspection” (NOI) to the employer. After delivery, the employer has as little as three days to produce Form I-9s for all their employees. Employers should keep forms together in a dedicated drawer or binder, and should not save Form I-9s for longer than required. (According to federal law, the forms need to be kept for three years after the date you hire an employee or one year after the employee’s termination, whichever is later.) Additional paperwork may also be requested.
Also keep in mind:
- Respond quickly to an NOI, even if it is just to ask ICE for a time extension.
- Notify all employees and managers who handle I-9s.
- Choose one person to correspond with ICE to avoid inconsistency in the information given.
- Secure all records – ICE may view missing forms as an attempt to destroy evidence.
Once all documents have been submitted, ICE will review them and note discrepancies. If simple technical errors are found, the employer will have ten days to make corrections. Bigger discrepancies are more difficult to fix. These are things like relying on unacceptable documents for employment verification.
Unless you are a very small company, fines can add up quickly. Generally fines range from $110 to $1,100 for every substantive violation. The range is the same for every technical violation that is not corrected within the ten-day period. Additional fines can be assessed if ICE can prove the employer knowingly hired or continued to employ unauthorized workers. ICE considers:
- Whether the employer knowingly hired unauthorized workers or committed a paperwork violation
- Prior offenses
- The percentage of total reviewed I-9s that have violations, and
- Other factors such as business size, good faith, seriousness, employment of unauthorized aliens, and history
Most common errors
- Employee leaves out required information such as maiden name, address, date of birth.
- Form is not filled out according to the time requirements.
- Employee does not sign one of the sections.
- Employee fails to check the box indicating their citizenship status or they check multiple boxes.
- Employer does not enter an acceptable verification document.
- Employer fails to enter the date of hire.
How to correct an I-9
- Always use a different color ink.
- Initial and date next to all changes.
- If information is correct but in the wrong place, draw an arrow to the right place, initial and date
- Attach a memo to explain the reason for the correction.
- If you don’t know how to fix it, have the employee complete a new Form I-9 and attach a memo explaining the reason. Retain the old form.
- If an I-9 is missing for an employee, have the employee complete a new Form I-9. When signing, use the current date – do not backdate.
How to prepare your company for an I-9 audit – steps to take now
Conduct an internal audit.
- Separate I-9s from employee personnel files.
- Verify all I-9s are accounted for by cross-referencing a list of current employees and recent terminations.
- Gather a list of current employees hired after November 1986.
- Add to the list any employees who terminated in the last three years.
- Ensure employees who check the box in Section 1 are clearly identified.
- If you discover a mistake, correct the existing form or, if there are multiple errors, you can prepare a new Form I-9.
- If you choose to correct the existing Form I-9, cross out the incorrect portions, enter the correction information, and initial and date the corrections.
- If you create a new Form I-9, retain the old form. You should also attach a short memo to both the new and old Forms I-9 stating the reason for your action.
- If you discover you are missing the Form I-9 for an employee:
- Immediately provide the employee with a Form I-9.
- Allow the employee three business days to provide acceptable documents.
- Do not backdate the Form I-9.
Consider going one step further and have a labor attorney who has experience in I-9 laws and procedures review all of your I-9s.