Recently, the U.S. Immigration and Customs Enforcement (which enforces I-9 compliance) and the Office of Special Counsel (which enforces the anti-discrimination portion of the Immigration and Naturalization Act) issued a joint “Guidance” for employers conducting internal I-9 audits.
The Guidance provides some practical tips on conducting an internal audit of I-9 forms, including:
- Review all I-9s or a subset that is randomly selected. Do not select a group of I-9s to audit based on the nationality or race of the employees who completed the I-9s.
- To correct an error, draw a line through the incorrect information, enter the correct information and initial and date the correction. Do not conceal the incorrect information (using whiteout or a marker) or erase the incorrect information.
- Do not backdate corrected I-9 forms.
- If you need to add information that was incorrectly left out, insert the new information and sign and date the addition.
- Deficiencies in Section 1 of the I-9 form should not be corrected by the employer. Only the employee should correct Section 1. If the employee is no longer available, attach a memorandum to the deficient I-9 noting that a correction is not possible because the employee is not available.
- If the audit shows that the wrong version of the I-9 form was used, make a note and attach it to the outdated I-9. There is no need to complete a new I-9.
- If you discover that an I-9 form was not completed, you should complete a new form using the current version and attach a note to the I-9 form as to why it was completed at a later date.
- When correcting a deficiency based on a missing document or an incorrect document, allow the employee to choose which of the acceptable I-9 documents they want to use to correct the problem.
- Never require the presentation of specific documents when completing or correcting an I-9 form. The employee may choose any combination of acceptable documents to present.
- When an employee comes forward with a new identity, you may continue to employ them but are not required to do so. Have the employee complete a new I-9 form and attach it to the old I-9 form. Attach a note to the I-9 forms explaining the situation.
- If the audit shows you have missed using E-Verify when you were required to, submit the matters to E-Verify. We are reminded not to terminate employees that receive Tentative Non-Confirmation in E-Verify system.
- If an employee confesses that he or she is not authorized to work during an audit (or at any other time), you cannot legally continue to employ them.
- If a question arises during an audit regarding the validity of a document, and the employee asserts that they are authorized to work, the employee must present a new document. You can give the employee a reasonable amount of time to obtain the document. Interestingly, the Guidance notes that some documents may take 120 days to obtain. The reasonableness of the time given to obtain a new document is judged on a case-by-case basis. Make notes in the file on the time given and any need for an extension.
- You do not need to audit an employee’s I-9 form if you receive an anonymous tip or information that is not reliable regarding that employee’s authorization to work.
- Do not use the Social Security Number Notification Service as part of your audit of I-9 forms.
We recommend that all employers perform an annual internal I-9 audit. The recent Guidance is a practical and helpful tool to use when performing an internal I-9 audit.