Are You Ready for a Government Inspection of Your I-9 Forms?
As you well know the Immigration and Reform Control Act requires all US employers to use the I-9 Form to verify a new hire’s identity and their eligibility to work in the US. DHS is on record announcing it will impose higher fines on non-compliant employers and Immigration and Customs Enforcement (ICE) is expected to focus on worksite enforcement, including I-9 inspections. There have already been reports of ICE visiting construction sites and serving a contractor with a Notice of Inspection requiring the contractor to produce its I-9 Forms within three days (72 hours) of the government’s request for the original forms. The Notice will likely include a request for a list of employees’ names, most recent payroll, and names of contractors and staffing companies used. Given that construction sites are ripe to be targeted, it is a good time to be pro-active and conduct a self-audit.
The current I-9 Form has an issue date of 1/20/25 and expires 5/31/27. The I-9 Form and instructions on how to complete the form can be found here: https://www.uscis.gov/i-9. Employees must complete Section 1 on their first day of work by producing documentation verifying their identity. The form provides a list of acceptable documentation and employers are required to examine the documentation to determine if it appears genuine and relates to the employee. Employers are required to complete Section 2 of the Form within three business days of an employee’s start date. The employee must present acceptable, unexpired, original documents (of their choosing and noted on the Lists) establishing the employee’s identity and employment authorization. Rehire may require reverification of an employee’s status. Failure to comply can result in civil fines, criminal penalties, and debarment from government contracting.
Although the process appears relatively straightforward, it is complex. The audit will look for both technical paperwork violations and more substantive violations like document fraud or known hiring of unauthorized workers. Often the forms are completed incorrectly filling in the information in the wrong boxes or not following the instructions. Other failures are related to the failure to obtain acceptable documentation or to examine it for genuineness. Employers must not discriminate against the new hire and must be careful when rejecting documentation and cannot request the potential employee produce a particular form of documentation. An employer may not correct errors or omissions in Section 1.
If an employer discovers an error or omission in Section 1 the employee should be asked to correct the error by (1) drawing a line through the incorrect information; (2) entering the correct or omitted information; and (3) initialing and dating the correction or omitted information. If the employee is no longer working for the employer, the employer should attach a signed and dated statement identifying the error or omission and explaining why the correction could not be made. Errors in Section 2 should be completed in the same manner. No erasures or white-out should be used and the form should never be back dated. The completion of the I-9 Form should not be treated as a clerical or administrative process. It is a substantive process which requires knowledge and care to properly complete the forms based on appropriate documentation.
Some examples of typical failures include:
An employer may choose to conduct its own internal audit or contact an outside third party to assist. Regular self-audits can help identify errors and make corrections in advance. Training of staff regarding the I-9 compliance can be performed. Care should be taken to make sure the audit is not discriminatory or retaliatory. Employees should be informed of the scope and purpose of the audit.
If you would like more information or assistance with a Form I-9 Audit, kindly reach out to Lorraine D’Angelo, lorraine@ldaconmplianceconsulting.com or call (914) 548-6369.