Should You Perform an I-9 Self Audit?

Employers in the United States need to take appropriate steps to avoid violations of the federal I-9 requirements. This includes conducting periodic self-audits to ensure ongoing compliance.

In the United States, companies have an obligation to ensure that their employees are authorized to work under federal immigration law. As explained by U.S. Citizenship and Immigration Services (USCIS), “All employers must complete and retain Form I-9, Employment Eligibility Verification, for every person they hire for employment after Nov. 6, 1986, in the U.S. as long as the person works for pay or other type of payment.” There are no broad exceptions for companies of certain sizes or that operate in certain industries, and there are no excuses for non-compliance.

With this in mind, all U.S. companies need to make I-9 compliance a priority. In addition to developing and implementing appropriate internal policies and procedures, ensuring I-9 compliance also involves conducting periodic self-audits.

Answers to Five Important Questions about I-9 Self Audits for Employers

Why Should Employers Self-Audit for I-9 Compliance?

Employment eligibility verification through the use of I-9 forms and supporting documentation is a requirement for U.S. employers under the Immigration Reform and Control Act (IRCA). When a company is non-compliant, not only can the company itself face fines and other penalties, but its owners and executives can potentially be exposed to federal penalties as well. While these penalties are usually civil in nature (i.e. civil fines), federal authorities will pursue criminal charges for immigration-related offenses in appropriate cases.

While implementing policies and procedures to establish an employment eligibility verification program is an important aspect of compliance, it is not sufficient on its own. In order to ensure that their verification programs are effective, companies must test them as well. The means for doing so is by conducting self-audits designed to uncover any flaws or other shortcomings that may need to be remedied. When conducted systematically on a periodic basis, I-9 self audits can provide crucial certainty while also allowing for the generation of essential documentation of good-faith efforts to comply with IRCA.

When Should Employers Conduct Self Audits for I-9 Compliance?

In terms of when companies should conduct self audits for I-9 compliance, there is no single “right” answer. Generally speaking, the more employees a company has, the higher its risk level will be in terms of employment eligibility verification miscues, and the more frequently it will be beneficial to conduct self audits. Certainly, if a self audit has not been conducted recently (or if the company has never conducted a self audit for I-9 compliance), then it will be advisable to examine the sufficiency of the company’s I-9 compliance program promptly.

One point that should be abundantly clear is that assessing the strength and sufficiency of a company’s I-9 compliance program is not a one-time event. Self audits for I-9 compliance should be conducted periodically according to a schedule that takes the company’s specific hiring volume into account.

What is Involved in Conducting an I-9 Self Audit?

There are several aspects to conducting an effective I-9 self audit. First and foremost, these internal audits generally should not be conducted by company personnel directly. Having outside counsel conduct I-9 self audits will ensure that both (i) the company is able to rely on the advice of counsel in determining whether its compliance efforts are adequate (and, if not, what needs to be done); and, (ii) employees are not put at risk as a result of overlooking issues or making other mistakes during the audit process.

In broad terms, the key aspects of an I-9 self audit include:

• Review of Employment Records to Confirm All Necessary I-9 Forms are On File – Prior to reviewing the company’s I-9 forms themselves, outside counsel should first review the company’s employment records to confirm that all necessary I-9 forms are on file.
• Detailed Review of All Newly-Completed I-9 Forms – For any I-9 forms completed subsequent to the company’s most-recent previous self audit, a detailed review should be conducted to ensure that the forms have been fully completed. This includes full completion of Section 1 by the employee and full completion of Section 2 by an authorized representative of the company.
• Review of All New Substantiating Documentation – Likewise, all substantiating documentation on file for new hires should be reviewed to confirm that it is satisfactory under IRCA. This includes not only confirming the existence of such substantiating documentation, but also reviewing the documentation substantively to look for any possible signs of identity theft or immigration fraud.
• Determine Which I-9 Forms and Substantiating Documentation are No Longer Required – Under federal law, employers are required to keep I-9 forms and substantiating documentation for the longer of (i) three years from the date of hire, or (ii) one year from the take of termination. If any documents in the company’s I-9 file are no longer required under federal law, then appropriate disposal should be considered.
• Examination of Other Pertinent Files and Records for Possible Deficiencies – In addition to reviewing the company’s I-9 file and other employment records, other pertinent files and records should be reviewed as well in order to identify any possible deficiencies that may present a risk in terms of I-9 compliance.

What Steps Should a Company Take After Conducting an I-9 Self Audit?

After conducting an I-9 self audit, there are a number of additional steps that should be taken in order to minimize the company’s risk of liability in the event of a federal audit conducted by U.S. Immigration and Customs Enforcement (ICE) or Homeland Security Investigations (HSI). These steps include:

• Complete Any Deficient I-9 Forms – If any of the company’s I-9 forms are deficient in any respect, this is an issue that should be remedied promptly. Missing information should be filled in with appropriate annotation, and employees should be asked to complete any portions of Section 1 that they failed to complete at the time of hire.
• Obtain Any Additional Necessary I–9 Forms and Supporting Documentation – If the company is missing I-9 forms or supporting documentation for any of its employees, then these should be obtained and stored promptly.
• Destroy I-9s and Copies of Supporting Documentation that Are No Longer Needed – For any I-9 forms and supporting documentation that are no longer needed, disposal should be considered consistent with the company’s internal document retention and destruction policy.
• Determine Whether Compliance Program Updates or Modifications are Necessary – If an I-9 self audit reveals systemic deficiencies, then the company’s compliance program should be updated accordingly. It should also be determined whether any employees need to be trained or retrained on I-9 compliance.
• Take Any Necessary and Appropriate Employment Action – If an I-9 audit reveals that the company has unlawfully hired an individual who is ineligible to work in the United States, then the company should take necessary and appropriate employment action promptly.

What if My Company is Being Audited by DHS, ICE, or HSI?

If your company is currently being audited by DHS, ICE, or HSI for employment eligibility verification compliance, then in addition to submitting your company’s I-9 forms and substantiating documentation as required, it will most likely be in your company’s interests to conduct a self audit at this time as well.

Why? When you are informed of the outcome of the government’s audit, and if the outcome is not entirely favorable, you will need to know whether you have grounds to challenge the government’s determinations. Additionally, if DHS, ICE, or HSI is likely to uncover issues during its audit, being able to address these issues proactively during the process may allow you to avoid a negative outcome. Ultimately, when it comes to the possibility of facing federal penalties, companies cannot afford to take a wait-and-see approach. Instead, they must gather the information they need to make informed decisions and execute sound and narrowly-tailored defense strategies.

About Oberheiden P.C. | Federal Compliance and Defense for Companies Nationwide

Oberheiden P.C. is a federal compliance and defense law firm that represents companies nationwide in all matters pertaining to employment eligibility verification. This includes developing compliance programs, conducting I-9 self audits, and defending against federal audits and investigations. Our firm is comprised entirely of senior attorneys and former federal agents; and, collectively, our career defense attorneys, former federal prosecutors, and former federal investigators have notable experience handling complex federal matters.

We represent companies nationwide, and we have affiliated local counsel in major cities across the country. We are able to provide much of our representation remotely, and we can have attorneys on-site at your company’s offices to conduct I-9 self audits as necessary.

Put our highly experienced team on your side

Dr. Nick Oberheiden

Founder

Attorney-at-Law

Lynette S. Byrd

Former Department of Justice

Brian J. Kuester

Former U.S. Attorney
Former DA

John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach

Former Special Agent (OIG)

Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick

Former Special Agent (FBI & IRS-CI)

Ray Yuen

Former Supervisory Special Agent (FBI)

Discuss Your Company’s I-9 Compliance Needs with a Senior Attorney at Oberheiden P.C.

If your company needs to conduct an I-9 self audit, or if you have questions about employment eligibility verification compliance, we encourage you to get in touch. One of our senior attorneys will be happy to discuss your company’s needs in confidence. For a free, no-obligation consultation, call us at 888-680-1745 or inquire online today.