Tips for Avoiding Form I-9 Problems in Light of Increasing ICE Audits

President Trump based his campaign platform in part on immigration reform. Early in his presidency, he authorized the hiring of 10,000 additional Immigration and Customs Enforcement (ICE) agents and promised greater enforcement of existing statutes. More recently in October 2017, Acting Director of ICE, Thomas Homan, announced that in order to eliminate the “magnet” of U.S. jobs which purportedly drives illegal immigration, ICE (through its Homeland Security Investigations unit) would increase worksite investigations of employers by “four to five” times in 2018. This was no idle threat—as of May 7, 2018, only seven months into ICE’s fiscal year, it had already conducted twice as many workplace investigations as it had completed in the preceding fiscal year. Moreover, observers are predicting that ICE will continue increasing the number of investigations throughout this year.

While an employer cannot avoid being selected for an ICE audit, there are certainly steps an employer can take to ensure they are in compliance with the law.

Tip #1: Perform an Internal Form I-9 Audit

Employers have a legal obligation to verify an employee’s identity and employment authorization, which is based on being a U.S. citizen or otherwise having government approval to work in this country. This obligation is satisfied by completing a Form I-9 for each employee within three (3) business days of the date of hire, i.e., the first day of work.

The chief way that ICE investigates a workplace for violations is by performing a Form I-9 audit. Even minor technical errors may lead to a fine if uncorrected, and substantive errors or a finding that the employer knowingly hired and employed unauthorized workers have steeper penalties, up to $16,000 per violation, loss of federal contracts, and possible criminal prosecution. According to Sue Kohlwey of the United States Citizenship and Immigration Services (USCIS), 76% of all paper Forms I-9 have at least one finable error. Consequently, it behooves employers to conduct an internal Form I-9 audit based on the increased likelihood of an ICE audit.

  • The internal audit should be performed by someone familiar with Form I-9.

The audit should be conducted by a person familiar with Form I-9 in its various iterations over the years. This person should also be familiar with the M-274 Handbook, which is a guide provided by USCIS to assist employers in properly completing Forms I-9. This person can then use their familiarity to hone in on issues that are frequently repeated (in our experience, because Forms I-9 are often completed with the assistance of the same Human Resources personnel, if there is an issue, it is typically repeated on multiple forms).

Some employers choose to engage outside counsel to perform the internal audit, which provides specific expertise, a non-biased outside reviewer, and alleviates the hassle for the employer.

  • The internal audit must be performed in a nondiscriminatory manner.

Ideally, every Form I-9 should be audited to ensure compliance, although this is not always feasible. But if not every Form I-9 will be audited, the employer should establish a neutral method of selecting forms to audit that avoids any appearance of race or national origin bias, which could implicate a discrimination claim. For example, the employer could select every fifth name on an alphabetical list of employees.

  • Identified issues must be corrected in strict compliance with the M-274 Handbook.

For example, employees are responsible for correcting errors in Section 1 of Form I-9, but employers should correct errors in Section 2. An employer should never conceal any corrections, but should follow the M-274 Handbook guidelines to correct an erroneous Form I-9 and document such corrections. The M-274 Handbook is available at: https://www.uscis.gov/i-9-central/handbook-employers-m-274.

  • The internal audit should be a regular event, preferably annually.

Employees come and go. The government revises Form I-9. Documents get lost. There are a variety of reasons why a single optimum internal audit does not mean an employer is going to stay in compliance. Employers must vigilantly review their Forms I-9 on a regular basis, preferably annually.

Tip #2: Develop or review a document retention policy.

Employers must keep Sections 1-3 of the Form I-9 for each employee currently working. When an employee is discharged, the employer must keep the Form I-9 for the longer of one year after discharge or three years after the employee’s date of hire.

Since the Forms I-9 are subject to governmental audit, it is advisable to store them separately from personnel files or any other documentation. In the event of an audit, employers should be able to provide the Forms I-9—but not documents unrelated to the audit—quickly to ICE agents.

Finally, Forms I-9 that are no longer required to be kept should be promptly disposed of. Since they contain personal information of former employees, they should be shredded.

Alternatively, some vendors are now offering approved electronic services for Form I-9 completion and storage, which could be optimal for some employers.

Tip #3: If selected for an ICE audit, do not panic!

If an employer follows the tips above, there should be no need to panic if it receives a Notice of Inspection (NOI) from ICE. Employers have three business days to produce the Forms I-9 for audit after receiving the NOI.

After the audit is complete, ICE will send the employer its results: either a letter stating the employer is in compliance, or a notice indicating identified problems. Notices may identify: technical violations, in which case the employer has ten (10) business days to correct the issue; suspect documents or discrepancies, in which case the employer should either provide additional documentation refuting the discrepancies or cease employing the identified employee; or an intent to fine, in which case the employer should attempt to negotiate a settlement with ICE or request a hearing with the Office of the Chief Administrative Hearing Officer within 30 days of receipt.

Following the above tips should prevent employers from suffering an adverse ICE audit and lay the groundwork for ensuring future compliance as well.

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