Would Your I-9 Forms Pass An ICE Audit?

(Published December 7, 2009)

 

This article was published in our free e-mail newsletter, Employment Law Today.

 

Last month, U.S. Immigration and Customs Enforcement (ICE) announced the issuance of Notices of Inspection (NOIs) to 1,000 employers across the country associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with Form I-9 employment eligibility verification laws.

 

"ICE is focused on finding and penalizing employers who believe they can unfairly get ahead by cultivating illegal workplaces," said ICE Assistant Secretary John Morton.  "We are increasing criminal and civil enforcement of immigration-related employment laws and imposing smart, tough employer sanctions to even the playing field for employers who play by the rules."

 

The 1,000 businesses served with audit notices were selected for inspection as a result of investigative leads and intelligence and because of their connection to public safety and national security, e.g., privately owned critical infrastructure and key resources.  The names and locations of the businesses were not released due to the ongoing, law enforcement sensitive nature of these audits.

 

You may think that your company can fly under ICE's radar, but one call from a disgruntled employee could have the government knocking on your door.  You should be conducting periodic I-9 audits on your own and making a good-faith effort to correct mistakes.  This will help make an ICE inspection as painless as possible.

1. Determine whether you have I-9 forms filled out for all current employees.  If any are missing, you will have to ask those employees to fill it out again.  Do not backdate the new I-9s to reflect when they should have originally been done.  Simply note and initial that the old one was lost and a new one was created.
   
   

2. Correct simple errors (e.g., a missing date, a transcription error) by crossing out the wrong information and filling in the correct information.  Initial and date the correction.
   
   Note: If the employer signature is missing, do not sign it yourself because you have not seen the employee's identity and employment authorization documents yourself.  The signature is an attestation that you have examined the documents and they appear to be genuine and relate to the individual.
   
   

3. If there is an error related to an employee's documents (e.g., missing information), you will need to have the employee bring in either a List A document or a List B and a List C document.  Do not require the employee to bring in the same document(s) that he/she originally used; you must accept any document(s) from the Lists Of Acceptable Documents.
   
   

4. If you are missing I-9 forms for former employees that should still exist (i.e., it has been less than three years after the date of hire or less than one year after termination), there isn't much you can do.  If there are copies of the employees' documents attached, you can fix simple transcription errors.  You can also look at personnel files to fill in a missing hire date.  Otherwise, you do not have to contact former employees to correct other errors.

This is a good time to purge the files of I-9 forms of former employees that can legally be destroyed and to set up a system for periodically doing so, if there is not already a system in place.

 

Related Topic(s): Hiring/IRCA - Immigration Reform and Control Act,  Record-Keeping Documents