Form I-9 Audits: What an Increase in Enforcement Means for Employers

Estimated Read Time: 7 Minutes

  • I-9 forms have had an increase in enforcement that promises to shore-up compliance nationwide
  • January 10, 2018, early morning reports of raids by Immigration and Customs Enforcement (ICE) confirmed that – worksite enforcement has been increased
  • Internal Form I-9 audits should be done consistently, thoroughly, annually, and by a knowledgeable staff member in an unbiased fashion
  • When a worker’s employment is terminated, the Form I-9 must be retained for either three years after the date of hire or one year after termination; whichever is longer
  • An Notice of Inspection requires employers to submit original Forms I-9, together with other business documents and information, to ICE
  • Employers are able to digitally recreate the Form I-9 with fillable fields as well as an electronic signature, provided that the document is visually similar and contains all the same data elements and language of the paper version

I-9 compliance is one of those subjects that gets a similar reaction across the board – usually an eye roll here or a blank stare there. But regardless of your initial reaction, chances are you get the frustrating “sinking gut” of unwillingness to even acknowledge the existence of a subject so gray with excitement. Unfortunately for most, however, I-9 forms cannot be ignored. Not with the increase in enforcement that promises shore-up compliance nationwide. I-9 compliance has always been difficult to manage. This much is clear when you look at the history of enforcement actions taken against employers over the last few years.

And if you’re still using paper I-9 forms, the issue of Form I-9 compliance may seem like an impossible beast to manage. According to Sue Kohlwey of USCIS, 76% of all paper I-9 forms have at least one finable error on them. This is a massive percentage. And while most of these may be technical violations, they’ll still cost you a pretty penny should they be discovered during an ICE audit. But with the recent increase in enforcement by ICE, managing your I-9 forms is now more important than ever.

So What Changed?

On January 10, 2018, early morning reports of raids by Immigration and Customs Enforcement (ICE) confirmed what had been assumed – worksite enforcement has been increased and employers should take note.

In a previous blog post of ours, we addressed the question that everyone was asking. “How likely am I to actually be hit with an ICE audit?” And the answer back then? Not very likely. The answer today, however, looks to take on a bit of a different tone. The continued reports of high-profile ICE raids are very intentional. ICE wants employers to know that they’ve increased enforcement and they want you to take this very seriously. ICE is making a statement and they want employers to take note.

The current administration also appears to be building upon successful tactics that were used during both the Bush and Obama eras by focusing on administrative arrests of employees and requests for Forms I-9 through a Notice of Inspection (NOI) to employers. ICE conducted 1,279 audits of I-9 forms in 2016 and that number is expected to rise dramatically under the new enforcement focus.

What Can Employers Do?

While reeling in your Form I-9 compliance may seem like a daunting task, it’s critical that you give it the amount of time that it’s due. And if done correctly, you’ll be on a good path to maintain compliance and maybe even get some better sleep at night. Here are four actionable steps that you should take right now to get ahead of your I-9 compliance.

Conduct Internal I-9 Form Audits

Internal Form I-9 audits assist with regulatory compliance and should be used to review, evaluate, and improve hiring procedures. Before beginning the internal audit, it’s imperative that your organization establishes procedures to ensure that the audit is conducted in a non-discriminatory manner. It is unlawful for employers to discriminate on the basis of race or national origin, and mishandling an internal audit can create the appearance of discriminatory practices and the potential for discrimination charges.

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Your internal Form I-9 audit should be done consistently, thoroughly, annually, and by a knowledgeable staff member in an unbiased fashion. The audit should concentrate on key problems that frequently arise during the completion of the Form I-9. Additionally, it is critical that the individual conducting the audit is familiar with the M-274 Handbook, the Form I-9 requirements, the risks and pitfalls, the terminology, and the internal corporate process and policy of storing Form I-9 records.

Review Current Storage and Retention Practices

Employers are required to keep Section 1, 2, and 3 of the Form I-9 for every individual on the organization’s payroll. But It isn’t required to keep the instructional pages of the forms. And be sure to store your Form I-9 documents separately from other personnel documents.

When a worker’s employment is terminated, the Form I-9 must be retained for either three years after the date of hire or one year after termination; whichever is longer. Forms I-9 should then be properly disposed of once the retention requirements have been satisfied.

Here are a couple examples to clarify

  1. John works at ABC International for six months before leaving for another job. Since John has only worked at the company for six months, his Form I-9 needs to be retained for another two and a half years to satisfy the requirement that the Form I-9 must be retained for three years past the date of hire.
  2. Samantha, who also works at ABC International, quits her job after two and a half years. Her documents will need to be retained for one year past her termination date since that would be longer than three years past her date of hire.

Just remember – 3 years past date of hire or 1 year past date of termination, whichever is longer.

Prepare for a Visit from ICE

US Immigration and Customs Enforcement (ICE) initiates the Form I-9 inspection process with the Notice of Inspection (NOI). An NOI requires employers to submit original Forms I-9, together with other business documents and information, to ICE. After receiving a NOI, ICE allows three business days to present your organization’s I-9 Forms. ICE will also request additional information, such as payroll, a list of current employees, or a current business license.

TYPES OF VIOLATIONS

  • Technical/Procedural – violations that ICE considers correctable. These violations include errors such as entering the wrong birth year in Section 1.
  • Substantive – errors within a Form I-9 that are not considered correctable. Failure to complete a Form I-9 is considered a substantive violation.
  • Knowingly Hiring or Continuing to Employ – violations where evidence shows that the employer either knowingly employed an employee that wasn’t work eligible or continued to employ a worker after finding out that they were not eligible for employment.

Migrate to a Digital I-9 Platform

For those who wish to move away from a paper Form I-9 system, US Customs and Immigration Services (USCIS) does allow electronic options for both form completion and storage. Employers are able to digitally recreate the Form I-9 with fillable fields as well as an electronic signature, provided that the document is visually similar and contains all the same data elements and language of the paper version.6

Several companies have created electronic I-9 forms that give employers the option to create and store digital Forms I-9. The benefit of these systems is that things like document expirations and removal dates are automated, making it easier to keep track of. Most systems include built in error checking algorithms to help mitigate the risks of fines. Many systems are even integrated with E-Verify for instant form submission.

Is it worth it to move to an electronic I-9 forms?

That’s up to you. Electronic I-9 forms can help you save time, storage, and legal exposure, but they aren’t free. It’s up to you to ensure that you are getting the best return on investment. The amount of time you can save using an electronic process has the potential to save enough on labor to at least offset the cost. With risk management in mind, the cost of a self-auditing electronic I-9 software is also much less expensive than Immigration and Customs Enforcement (ICE) audit fines.

We actually offer a digital I-9 platform that can dramatically streamline your I-9 forms by providing error-checking software, storage and retention, and automated record deletion. Click here to see Valid I-9 for yourself.

Conclusion

I-9 forms will always be a headache until you get them under control. When you combine the increase in ICE enforcement with the nature of job hopping today, now is a good time to assess your exposure. How confident are you that your I-9 forms are properly completed, filed, stored, and deleted? If the answer isn’t an emphatic “very confident,” it may be time to take a deeper look into your I-9s.