Five Things Employers Should Consider When Conducting an I-9 Self-Audit

Mechelle Zarou
Mechelle Zarou

The year 2009 marked a dramatic change in Immigration and Customs Enforcement’s (“ICE”) workforce enforcement strategy. Up until 2008, ICE focused its enforcement efforts almost exclusively on illegal workers. For instance, ICE made 6,000 workforce enforcement strategy-related arrests in 2008; only 135 of them involved employers. Starting in 2009, however, ICE shifted its focus from illegal workers to employers who knowingly hired unauthorized workers. As part of its strategy of targeting employers, ICE began setting up centers around the country that are fully dedicated to I-9 audit work.

Under the Immigration Reform and Control Act of 1986 (“IRCA”), employers are required to verify that an employee is authorized to work in the United States by obtaining and maintaining a completed Form I-9, Employment Eligibility Verification for each employee hired on or after November 6, 1986. The Form I-9 contains a list of acceptable documents for establishing an employee’s identity and authorization to work. Those documents include a U.S. Passport, Permanent Resident Card, driver’s license, social security card, and birth certificate, among others. ICE enforces employers’ obligations under IRCA by, among other things, inspecting their I-9 forms.

Each and every I-9 violation can carry a penalty of $110 to $1,100 per form.  Of course, the easiest way for employers to avoid the uncertainty of potential fines is to make sure they are complying with their I-9 obligations—before they get audited.  Consequently, here are five things to consider when conducting an I-9 Self-Audit:

1. Review Current I-9 Procedures – As a preliminary step to a self-audit, the employer should review its verification system and any written policy to ensure that the stated policy is being followed in practice. At a minimum, this review should ensure that (a) Form I-9 that is being completed is the most current version, available here; (b) Section 1 is completed by the first day of employment (i.e., the first day employment for pay begins); (c) verification documents are provided no later than the third business day from the date of hiring; (d) Section 2 is completed within 3 business days of hire; (e) verification documents are original documents that the employer’s representative reviews in person; (f) any receipts for current work authorization are accepted and placed in a tickler system to ensure reverification upon expiration; (g) as a matter of policy, employees are not required to produce specific documents or more documents than the law requires; (h) an adequate tickler system is in place for employees who work authorization will expire and require reverification; and (i) if copies of documents used to complete the I-9 process are maintained, they are secured to the relevant I-9 and retained for all employees.

2. Compare Your I-9 Forms with Payroll Records – Prepare a computer printout of all employees hired since November 6, 1986, containing the date of hire and date of termination for all such employees. This record should be used to review the I-9 Forms, in order to determine whether required I-9 forms for current employees are missing, or whether certain I-9 forms for terminated employees may be purged.  The retention requirement is the full period of employment, plus one year.  At a minimum, however, I-9 forms must be kept for three years from the date of hire.  Thus, if an employee only works for six months before termination, the I-9 form must be kept for a full three years from the date of hire, not one year after termination date. Only the remaining I-9 forms that are properly maintained need to be reviewed for accuracy, completeness, omissions and other mistakes.

3. Review How You Are Maintaining your I-9 Forms – The I-9 forms that remain should be separated from employee’s personnel files and maintained in a separate I-9 file (or maintained electronically in compliance with the specific controls for electronic retention). Here are things to confirm during your review:   (a) assure that the employee has fully completed Section 1 of the form and signed and dated it on the first day of employment; (b) review Section 2 documents to assure they are on the list of acceptable documents; (c) ensure Section 2 is fully completed with pertinent information about the employee’s documents, including document numbers and expiration dates on the documents, when necessary; (d) if the documents are attached, confirm whether there are any errors in completing the form (either Section 1 or Section 2); (e) confirm that the employer’s representative has signed and dated Section 2; and (f) confirm that when an expiration date is listed in Section 1 or Section 2 for the employee’s work authorization, this date is noted in the Company’s reverification tickler system.

4. Correcting and/or Replacing a Form I-9 – If the employer needs to correct the I-9 form, strikethrough the portions of the form that are incorrect. The new information should be inserted, signed and dated as of the time of the insertion. If the omission or mistake was in Section 1, the employee should also sign and date the correction.  Above all, the form should not be backdated.  In addition, if at any time an employer discovers that an employee’s Form I-9 is missing and/or not on file, the employer should immediately request the employee to complete Section 1 of the Form I-9 and submit the required documentation in Section 2.  The new form should then be dated upon its completion, and not backdated to the original hire date. If paperwork errors or violations are discovered, the employer is required to correct the problem and to continue to update its records, as necessary.

5. Completing an Audit – At the conclusion of the audit, any corrections to I-9s should be completed as described above. In addition, the employer should prepare a file memo, which should include, at a minimum, errors discovered, corrections made, actions taken, any changes in policies, or training to undertake.

In light of the potential penalties and ICE’s increasing emphasis on employer sanctions, we recommend the use of experienced counsel to perform an audit of its I-9 forms to check its compliance history before Department of Homeland Security (“DHS”), Office of Special Counsel or the Department of Labor requests access to the forms. Even if counsel does not undertake the audit directly, it is wise to consult with counsel at the outset of the audit, in order for the attorney to direct the audit.  Audits undertaken by or at the direction of counsel are likely confidential and privileged under the attorney-client privilege, and thus self-incriminating information uncovered during the audit may not have to be disclosed to the government. An I-9 audit could include a snapshot audit, to get an overview of potential violations, or a full scale audit of all I-9s. As a follow up to the audit, a training program for the employer’s relevant personnel could be implemented to minimize future issues.

For more information, please contact Mechelle Zarou at 419.321.1460 or



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