Employment verification is an essential part of every hiring process in the United States. Federal law, under the Immigration Reform and Control Act of 1986, requires employers to confirm the identity of each new employee and confirm that they are legally authorized to work in the U.S.. This is done through Form I-9, Employment Eligibility Verification, a document that both the employer and employee must complete.
Upticks in employment verification investigations and increases in penalty costs add additional administrative stress to businesses of all sizes. To avoid the risk of failing an audit, it is crucial to stay proactive when managing your employee verification requirements. This comprehensive Form I-9 audit checklist will equip your business with the strategies it needs to prepare for a potential investigation.
Conducted by the Immigration and Customs Enforcement’s (ICE) division, Form I-9 audits are investigations that check a business’s records of Form I-9s to ensure employees are legally eligible to work in the US. These investigations will review the I-9 forms of recently hired, current, and some previous employees.
Investigations performed by ICE agents can happen at any time, which means businesses should be prepared for an investigation at all times. However, before an investigation, employers are generally given a three-business-day Notice of Inspection (NOI) to prepare I-9 forms and associated employee documents.
Generally, ICE agents will investigate a business if they have insight into the fact that the business is not in compliance with the proper Form I-9 requirements.
Here are ways I-9 agents can trigger an audit:
In some cases, ICE agents may randomly select a business for an audit. With an increase in I-9 investigations, particularly under the current administration, it is vital for employers to not only stay prepared, but to ensure employees are verified correctly the first time.
Maintaining Form I-9 compliance is key for businesses to avoid serious penalties. Employers can expect to pay hefty fines if they fail a Form I-9 investigation. It is important that employers avoid the violations noted below and ensure they follow the 7 steps for completing Form I-9 correctly.
Penalties can include the following:
Some businesses found to have a continuing pattern of knowingly bringing on unauthorized employees may also lose their business licenses or be subject to prison time of up to 6 months.
To avoid any risks associated with Form I-9 compliance, employers will want to prepare an internal audit prior to an ICE investigation to ensure all Form I-9s and records associated are completed, accurate, and kept in a secure yet easily accessible spot.
Practicing and maintaining a regular process for employment verification and Form I-9 compliance will ease your risk of non-compliance with ICE. Taking these proactive steps will ensure your business and HR professionals are prepared to handle an impromptu investigation.
Please be aware that the checklist is an informational guide and is not to be used as legal advice for any of the mentioned topics.
The core step in performing an internal Form I-9 audit is to ensure the information recorded on the forms is both complete and accurate. During an audit, ICE carefully examines all Form I-9s to verify they have been completed accurately and in accordance with the US Citizenship and Immigration Services (USCIS) instructions.
Before beginning the review process, gather all Form I-9 and the IDs associated with each. Then, start by reviewing each section of each Form I-9 to ensure no information is missing.
When reviewing I-9 forms, employers should evaluate the information recorded and determine if there are any mistakes made. USCIS has found that the most common mistakes made on Form I-9 include:
Reverification for a current employee occurs after the current documents have expired. As per the process, any findings in your internal audit process should be recorded, including mistakes noticed and corrections made.
All I-9 forms require an employee to provide additional documentation to support their employment verification status. For Form I-9, these documents are organized into three lists, that are based on verifying an employee’s identity, employment authorization, or both.
Employees must provide either one List A document or a combination of a List B and List C document during their onboarding process. When performing an internal audit, employers will want to ensure that the documents provided are legitimate, unexpired at the time of form completion, and fulfill the requirements of Form I-9.
As a precaution, employers should avoid over-documentation. Businesses are prohibited from retaining more than the required documents needed to complete employment verification. Ensure that only the necessary documents are kept, avoiding the perception of employment discrimination.
Carefully reviewing each Form I-9 should also involve reviewing the details in the documents themselves. Employers may have to adjust certain information to ensure that each Form I-9 is completed correctly.
If corrections must be made to an I-9 form, they must follow this procedure:
Employers may also begin a new Form I-9 for an existing employee if there are many errors to be corrected. However, employers MUST attach the updated form to the original with a note detailing the reasons behind the updated form.
Now that all Form I-9s are gathered, organized, reviewed, and corrected, if necessary, you are now ready to convert steps 2, 3, and 4 together into a standardized process for a simple and repeatable audit. This will help your business stay regularly prepared when the time comes for an impending investigation.
Using this checklist as a guideline to prepare your internal auditing process will also help your HR team and hiring managers follow and understand the importance of Form I-9 compliance, allowing all necessary team members to be prepared as well.
Some key items you’ll want to consider when putting together your internal audit process should include the following:
When performing I-9 audits, leveraging an HR consulting service that will help identify Form I-9 compliance issues and prepare your business for an investigation can give your business an added safety net against non-compliance risks and subsequent penalties which can be significant.
In order to stay prepared for an investigation ahead of time, employers should prioritize searching for and organizing their Form I-9 records. In accordance with employment verification laws, employers must maintain Form I-9 records for all current employees. For terminated employees, I-9 records must be retained for certain periods of time based on the terminated employee’s time with the company.
For terminated employees, Form I-9 records must be kept for three years after the date of hire, or one year after the date employment ends – whichever is later.
Dedicating a safe and secure spot to store these documents is critical, where they can be easily accessed when requested during an investigation. During the organization process, it’s also best to separate Form I-9s of terminated employees who are past the retention period mentioned above, as these are not required for an I-9 investigation.
When the time comes that an investigation takes place, your business should be prepared to present Form I-9s as instructed by the Notice of Inspection (NOI). Employers will be notified at least 3 business days prior to an inspection and must respond by submitting the forms detailed in the NOI.
ICE will generally also ask employers to provide supporting documentation for an investigation, which can include:
If, after the internal audit, ICE manages to find Form I-9 errors, a 10-day grace period is granted to make the necessary corrections for minor technical or procedural failures only.
It’s the law for employees to be verified for employment in the US. The penalties for Form I-9 non-compliance are severe and should be taken seriously at all times. Crafting a simple, repeatable process for internal auditing will not only significantly reduce the risk of non-compliance, but can also streamline the HR process, whether it be general recordkeeping management or onboarding new hires who are completing Form I-9s.
It's worth noting that only employees need to have a completed Form I-9, so it's important to know the differences between employees vs. contractors.
Complying with complex labor laws, such as employment verification, is no easy task for all businesses. If your company is struggling with managing I-9 compliance or is interested in implementing an internal audit process, contact us today.