Question: We’re concerned about the potential for increased enforcement if the government uncovers errors in our I-9s; is there anything we can do to reduce the likelihood of penalties if we’re audited?
Answer: Yes, you can take proactive actions now to help make an audit by U.S. Immigration and Customs Enforcement (ICE) as painless as possible.
As a reminder, federal law prohibits employers from employing individuals who are not authorized to work in the United States. Employers use the Form I-9 to obtain each new employee’s certification of legal authorization to work in the U.S. and to verify that status by reviewing documents that establish each employee’s identity and employment eligibility. Employers must also reverify employment eligibility for current employees whose work authorization expires. ICE can audit an employer’s I-9 compliance, which can result in fines (although that is unusual for first-time issues) and/or an order to cease employing individuals who aren’t authorized to work in the U.S.
To ensure you’re as prepared as possible for an audit, we recommend you:
- Review our previous reporting on what to do if ICE contacts your business, and put a plan together in case that happens.
- Bring all your I-9s together and store them in a single location. I-9s should be stored separately from all other files so they’re easy to review and produce in case of an audit.
- Remove and securely dispose of the I-9s you no longer must keep. You only need to retain an I-9 for one year after termination or three years after the date of hire, whichever is longer. You are accountable in an audit for all I-9s in your possession, regardless of whether they were past the required retention period, so removing the unnecessary ones will decrease your exposure.
- Ensure that the people you designate to comply with the I-9 requirements on your organization’s behalf are familiar with the instructions and are using the current version of the form.
- Conduct a self-audit of your I-9s. See our newly published Legal Guide, Form I-9: Self-Audit Guidance, for a comprehensive resource, including what issues to consider before launching a self-audit, how to conduct one, and what to do about the problems you uncover.
Current members, work with your Vigilant Law Group employment attorney on any questions that come up as you take these steps.
Not a member and struggling with complex employment issues? With Vigilant membership, you get ongoing counsel for a flat monthly fee. Stay ahead—reach out to learn more!
