Now that ICE has declared that there will be even more I-9 Audits in 2018, what can you expect if you get the Notice of Inspection or a knock on your door? Even though the chances are pretty low, you don’t want to be one of the unfortunate ones.
Disclaimer: These tips are informational in purpose and should not be construed as legal advice. Please contact your own legal counsel prior to making any employment-related decisions.
How the Audit process works:
The audit process is not arbitrary. Department of Homeland Security auditors have exact instructions and follow strict procedures when auditing your forms. Understanding these can help you be prepared and appreciate the severity of the audit process:
- Notice of Inspection
- Inspect Forms
- Find Violations
- Define Violations (Technical vs Substantive)
- Deliver Notices (Warning Notice vs Intent to Fine Notice)
- Enter OCAHO Hearing or agree to settlement
Be prepared first!
A correct Forms I-9 compliance process should leave you breathing easy. To make the audit process easy on yourself, remember the key tenets of I-9 Compliance.
- Ensure the employees complete section one on or before the employee’s first day. Remember they need to do it themselves. You technically have until day three to review the documents, but you’ll have a better process if it is simply part of your very first onboarding process on day one.
- If required or possible, use an electronic I-9 Forms solution to prevent errors and automatically submit to E-Verify.
- Remember you’re not allowed to ask for specific documents, but you do need either a document from List A, OR a document from BOTH List B and C. See the chart below for reference.
Self Audit Regularly
A big part of being prepared is knowing that your documents are all in order. Regularly review your documents and look for the following common mistakes:
- Incomplete forms - check for blank fields in common areas such as middle name and address. Be sure that the form is signed and dated! Caution: Social Security Number is NOT required in most cases, so keep that in mind when looking for blanks.
- Form completion errors. A common error is documents from column A in column B for example. The government is funny about white-out, so just have the employee carefully strike through and initial the error in section 1 (employer for Section 2), and put the numbers or information in the right place.
- Section 3- the dreaded section 3! This section is for employees whose documents have needed to be re-verified for expired documents (or less commonly, for a rehire.) Be sure the forms have been reviewed for upcoming expiration dates and Section 3 completed. These reminders should be triggers already if you have an electronic I-9 solution, but if not, set yourself reminders in your HRMS or even your calendar. This isn’t a time to procrastinate!
- If you have helped with the document (even by typing in Section 1 in advance) you’ll have to complete the preparer/translator section.
- Plenty more chances for errors- there’s a LONG instruction document for Form I-9. Find more help directly from the source here. http://www.uscis.gov/i-9-central
Store the I-9 Forms Separately
You already know you need to save your Forms I-9 for at least one year from termination date or three years from date of hire, but to really save yourself some trouble, consider keeping all these documents separated from your other personnel files. Additionally, keeping current employees separated from former employees can speed up the process even further. This way, when ICE comes knocking, you don’t have to spend hours digging the forms out of folders.
This is the biggest case yet for an Electronic I-9 solution. Even if you have separate paper files, you’d have to spend quite a bit of time regularly to shred the expired documents or those that have reached their scheduled disposition date.
ICE is likely to ask for other items, so have at the ready a current employee and contractor list (up to date, of course) a recent payroll, and your business license. If you use E-Verify, all those results will need to be available. Other items sometimes required are subcontractor agreements, Articles of Incorporation, and tax records.
When you receive a Notice of Inspection, you have three days to respond with your documents. Be sure that there is a primary and secondary point of contact, in case someone is on vacation. Make sure that everyone in the company, from the mailroom to the front desk, knows who these two people are.
DO NOT destroy any documents, be polite, and provide the documents you’ve self-audited, and kept in a central location. Notify your counsel if applicable.
After the Audit
What happens next? USCIS will inspect your documents. If your documents are in order, you’ll be notified that you’re in compliance!
If there are document issues, the errors will be brought to your attention and you’ll have the opportunity to correct them.
IF there are more substantive issues, you’ll be given additional notifications. This is a good time to engage outside counsel if you haven’t already.
Here is a list of the most common notices sent by the government after the audit is completed:
- Notice of Inspection Results – also known as a "compliance letter," used to notify a business that they were found to be in compliance.
- Notice of Suspect Documents – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has determined that an employee is unauthorized to work and advises the employer of the possible criminal and civil penalties for continuing to employ that individual. ICE provides the employer and employee an opportunity to present additional documentation to demonstrate work authorization if they believe the finding is in error.
- Notice of Discrepancies – advises the employer that based on a review of the Forms I-9 and documentation submitted by the employee, ICE has been unable to determine their work eligibility. The employer should provide the employee with a copy of the notice, and give the employee an opportunity to present ICE with additional documentation to establish their employment eligibility.
- Notice of Technical or Procedural Failures – identifies technical violations identified during the inspection and gives the employer ten business days to correct the forms. After ten business days, uncorrected technical and procedural failures will become substantive violations.
- Warning Notice – issued in circumstances where substantive verification violations were identified, but circumstances do not warrant a monetary penalty and there is the expectation of future compliance by the employer.
- Notice of Intent to Fine (NIF) – may be issued for substantive, uncorrected technical, knowingly hire and continuing to employ violations.