Audit Team Lead – Timothy E. Allen | Former Special Agent (U.S. Secret Service & DOJ-OIG)
Conducting an internal I-9 audit is an important part of every company’s compliance protocols. Companies that do not regularly conduct internal audits of their I-9 records can find themselves subjected to serious allegations of noncompliance from the U.S. Department of Homeland Security’s Immigration Customs and Enforcement (ICE). If proven, those allegations can lead to substantial fines and other sanctions. Even if not proven, the allegations themselves can lead to lots of bad press and a tarnished reputation.
The internal auditing professionals at Corporate Investigation Consulting have provided effective and efficient I-9 audits for companies across the country. With their experience, these companies have taken the steps necessary to insulate themselves from legal liability in both immigration and employment law as well as to avoid a needless allegation of wrongdoing that could hurt their business’ brand, all while avoiding harmful accusations of discriminating against workers.
I-9 Audits: Ensuring All Workers are Eligible to Work in the United States
Under the terms of the Immigration Reform and Control Act of 1986 and the regulations associated with it, all employers in the U.S. have to complete an I-9 Form whenever they hire someone. This Form requires employees to attest, under penalty of perjury, their citizenship status as either:
- A U.S. citizen
- A noncitizen U.S. national
- A lawful permanent resident, along with their Alien Registration Number or USCIS Number
- An alien authorized to work in the U.S., along with details about when their authorization expires
Authorized aliens have to supply one of the following documents in support of their attestation on the I-9 Form:
- Alien Registration Number or USCIS Number
- Form I-94 Admission Number
- Foreign Passport Number and its country of issuance
Employees have to complete their I-9 Form no later than their first day of employment. However, in order to prevent employment discrimination based on immigration status or national origin, they cannot be required to complete it before accepting a job offer.
The employer then has to complete its section of the I-9 Form without three days of the worker’s first day of employment. Someone from the employing organization has to physically examine documentation provided in support of the employee’s claim that he or she is eligible to work in the United States. The employee has to be present during this examination of their immigration documents. The agent for the employer who examines the documents must be the one signing the I-9 Form on behalf of the employer.
Put our highly experienced team on your side
Roger Bach
Former Special Agent (OIG)
Timothy E. Allen
Former Senior Special Agent U.S. Secret Service
Chris J. Quick
Former Special Agent (FBI & IRS-CI)
Maura Kelley
Former Special Agent (FBI)
Ray Yuen
Former Supervisory Special Agent (FBI)
Michael S. Koslow
Former Supervisory Special Agent (DOD-OIG)
Marquis D. Pickett
Special Agent U.S. Secret Service (ret.)
Goals of I-9 Forms are Conflicting and Complex
The I-9 process operates in a sensitive and politically fraught intersection between employment law and immigration law. As a result, employers can find themselves in legal jeopardy if they do too little or if they do too much.
On the one hand, immigration laws are meant to protect American assets, such as jobs and taxpayer-funded government benefits, from migrants while still maximizing the benefits that immigration provides to the country.
On the other hand, employment laws are designed to protect workers from unlawful conduct by their employers, including but not limited to retaliation or discriminatory hiring and employment practices. For migrant workers and noncitizens, discrimination is a real threat to their livelihoods. They can be discriminated against based on their:
- National origin
- Citizenship status
- Skin color
- Race
The I-9 process aims to walk the line between these conflicting interests, allowing American employers to benefit from a reasonable amount of migrant labor while still providing those workers the legal protections that they need to work efficiently and securely.
How to Conduct an Internal I-9 Audit
Establishing formal procedures for an internal I-9 audit and then sticking to them can show immigration enforcement and regulators that your company is taking its legal obligations seriously. By conducting these audits regularly, you can detect issues that could escalate into full-blown legal problems before they can do so.
At the very minimum, these internal I-9 audits should:
- Gather all of the I-9s to be audited
- Correct errors made by the employee
- Correct any errors made by the employer
- Make sure records are being properly maintained
- Maintain and update an audit log
Depending on the needs and concerns of the company, an I-9 audit’s scope can be limited to just a sampling or can include all of the I-9 Forms on record. This includes I-9s from former employees who were either terminated in the last 12 months or were hired within the last three years. While complete audits are more thorough, they are also more time-consuming. Additionally, only reviewing a sample can potentially open the company up to allegations of discrimination for treating certain workers differently than others.
If an I-9 has inaccuracies, missing information, or false information from the employee, the employer is not allowed to correct it. Only the employee can fix it. They have to date and initial the alternation to the record for it to be binding.
Mistakes on the I-9 made by the employer can be fixed without the employee’s presence. All alterations must still be dated and initialed by the person making the change.
Throughout this process, I-9 auditors should maintain a log of the documents that were reviewed and the changes that were made to them. This creates a contemporaneous record of the audit. Additionally, auditors should make sure that the required recordkeeping obligations are being followed for the I-9 Forms.
For more details on this process, read our I-9 audit checklist and recommendations article.
Several FAQs About I-9 Forms, I-9 Auditing, and Corporate Investigation Consulting’s Services
Do I Have to Complete an I-9 for All Workers?
Employers are not legally required to complete an I-9 Form for certain types of workers. There are exceptions to the I-9 requirement for:
- Workers who irregularly provide casual domestic services in a private home
- Workers hired on or before November 6, 1986, and who have a reasonable expectation of continued employment
- People who are not physically working within the United States
- Independent contractors
How Can an I-9 Audit Lead to Allegations of Workplace Retaliation?
Companies considering an I-9 audit need to take the context into consideration when deciding when to announce and begin the audit. If there are issues in the workplace that lead to litigation or allegations of employer misconduct, such as a claim for workers’ compensation after a workplace accident or an internal complaint of an unsafe working environment, initiating an I-9 audit can be seen as a response to those issues. This can be grounds for a workplace retaliation lawsuit, particularly if the claimant is one of the workers being audited.
Avoiding these allegations is essential. Unfortunately, it is not enough to simply refrain from using an I-9 audit as a weapon to keep workers in line. An innocent but badly timed I-9 audit can still trigger allegations of workplace retaliation.
Does ICE Enforce I-9 Obligations?
Yes, ICE conducts frequent I-9 audits of its own. Unlike many other government inspections, these audits ensure compliance through penalties and deterrence rather than the mere threat of an enforcement action. When ICE issues a Notice of Inspection, or a NOI, it will demand access to the recipient company’s I-9s within three business days. This does not give the company the time necessary to take remedial action to ensure that it can pass the inspection. It also means that companies need to have their paperwork in order so they can meet this pressing deadline.
Regularly conducting internal I-9 audits is the best way to make sure that the recordkeeping is being performed and that your company can pass an ICE inspection.
What are the Penalties for an I-9 Violation?
Companies that are found in violation of I-9 regulations will face steep fines that go even higher if they have prior violations – even in the distant past – and increase based on the company’s size. Even first-time technical errors carry fines of over $250. Subsequent serious violations carry fines over $25,000.
Additionally, enforcement actions and any resulting fines are public records that can lead to bad press for the company, further harming its bottom line.
What Sets Corporate Investigation Consulting Apart from Other Auditing Companies?
Many of our corporate investigators come from law enforcement backgrounds, including in the U.S. Department of Justice (DOJ), Federal Bureau of Investigation (FBI), and ICE itself. Particularly for I-9 audits, this means that our investigators and auditors know exactly what ICE is looking for and how they will react to violations or the perception of potential wrongdoing. That insider knowledge allows Corporate Investigation Consulting to help companies comply with the law and take the necessary remedial steps to mitigate the costs of any noncompliance that is discovered in an internal audit.
I-9 Audits are Not Legally Required, But are Highly Recommended
According to ICE guidance on the topic, I-9 self-audits are not legally required by federal law. However, they are highly recommended to ensure continued compliance with immigration and employment law. Not performing these audits can leave dishonest employee attestations unchecked, which can expose the company to legal problems as well as allegations of not taking its compliance obligations seriously.
The I-9 Auditing Professionals at Corporate Investigation Consulting
Conducting an internal I-9 audit is a sensitive but often necessary endeavor. Not performing one can expose your company to a delicate legal situation that can quickly and easily escalate. However, performing an I-9 audit improperly can also get the company accused of employment discrimination and retaliation.
The I-9 auditors at Corporate Investigation Consulting have guided numerous companies between these two legal threats. Contact them online or call their offices at (866) 352-9324 for help.