INS Guidelines for Conducting a Private I-9 Audit

First, review and evaluate the present IRCA compliance procedures. Section 1 should be completed at the time an employee is hired- Employers may be held liable for an employee's failure to complete Section 1. The employee has three business days from the date of her or his hiring to provide the employer with the documentation of identity and work authorization needed to complete Section 2 of the I-9 form ("three business days" requires an employer to count weekends and holidays as business days if the employer is open for business on those days). If, within that time, the employee produces a receipt showing that he or she has applied for a work authorization or identification document, the employee must be given 90 days to produce the required documentation. The employer must complete Section 2 of the I-9 form within three business days of the date an employee is hired. Employees must not be required to produce specific documents. The employer must accept the documents enumerated in the Form I-9 "Lists of Acceptable Documents" in any of the combinations indicated on the form.

I-9s must be retained for the duration of an employee's employment, plus one year, or for a minimum of three years from the date of hire, whichever is longer. Employers must keep a record of employees whose work authorizations will expire and reverify the authorization to work of such employees prior to expiration.

It is desirable to review every I-9 form the employer has prepared. To accomplish this is goal, INS recommends that the party conducting the audit start by identifying every employee hired (or rehired) after November 6, 1986, using payroll records or other records. Next, create two master lists of: (i) all active employees, with their dates of hire noted; and (ii) all terminated employees for whom an I-9 form is required, with dates of hire and termination noted. Create an "I-9 audit tracking form" for every listed employee, filling in each employee's name, date of hire, and date of termination (if applicable).

With larger employers, it may not be practical to inspect every I-9 form. A review of a random sample may be sufficient to reveal common errors, which can be corrected when discovered and prevented in the future. To perform a random sample audit, choose employees from personnel records in some random manner (for example, select all employees whose social security numbers end in an even number, or all employees born in May). Be sure to select a representative sample, that is, a sample that includes I-9 forms prepared at different times, by different managers, and, where appropriate, at different facilities. Create an I-9 audit tracking form for each randomly selected employee, filling in the name, date of hire, and date of termination, if applicable, for each selected employee. Gather I-9 Forms, Match Each I-9 Form to its Corresponding I-9 Audit Tracking Form, and Reconcile Any Differences. If there is an audit tracking form without a matching I-9 form, conduct another search for the I-9 form. If the form cannot be located, have the employee and employer complete a I-9 form. Do not back date the form. If the audit being conducted is of all of the employer's I-9 forms, rather than only of a random sample, and I-9 forms without corresponding audit tracking forms are located, determine why these discrepancies exist. Identify the employees for whom the employer has incomplete records and find out why they are not listed in the company's payroll records. Reconcile all inconsistencies.

The appropriate action for employers to take concerning Forms I-9 that are lost, destroyed, or not maintained as required by the retention requirements of the INA is to come into compliance with the law as quickly as possible. However, past violations of this nature cannot be retroactively corrected.

Missing information should be conspicuously inserted, initialed, and dated contemporaneously with its insertion. The employee should provide any missing information in Section 1 of the Form I-9; the employer should complete Sections 2 and 3 of the form. In cases where it is necessary to go back to the employee for additional information, be sure that the employer makes a special effort to avoid anti-discrimination violations. The employer should not require more documentation than is necessary to meet IRCA's requirements. The employer should allow the employee to present any document or combination of documents sufficient to satisfy the requirements of IRCA.

Omissions and mistakes discovered on a completed I-9 Form cannot be retroactively corrected. However, further violations may be prevented by taking corrective action as soon as the omissions or mistakes are discovered, since employers have an ongoing obligation to comply with the law. Incorrect information should be corrected, and the correction should be initialed and dated. If the employee remains employed by the employer, there is no paperwork error that cannot be corrected -- other than the failure to complete the form within three days of the date of hire. If the employee has been terminated, however, it may be impossible to correct errors or omissions in I-9 forms that have been uncovered in an audit.

As an alternative to the suggestions made in the preceding paragraphs that an employer insert and/or correct information on I-9 forms that a private audit has found do not comply with the requirements of IRCA, the employer may generate new I-9 forms. Such new forms will not comply with IRCA's three-day post-hire completion requirement. If done correctly, however, generating such new forms will negate all other violations and enhance a good faith defense. If this alternative is chosen, the employer must retain the original I-9 form.

For small employers, INS recommends a "binder system" for maintaining I-9 forms. In the binder system, the employer keeps two large three-ring binders, one for current employee I-9 forms and one for terminated employee I-9 forms. Organize the employer's I-9 forms alphabetically by employee within the binders. When a new employee is hired, her or his I-9 form is to be placed in the current employee binder. At the time an employee is terminated, her or his I-9 form is transferred to the terminated employee binder, and the date of termination is noted in the margin of the I-9 form. Periodically review the terminated employee binder to determine which I-9 forms may be discarded and which must be retained pursuant to the requirements of 8 CFR § 274a.2 (b)(2)(i)(A).

For larger employers, consider microfiche storage of I-9 forms, which is permitted under 8 CFR § 274a.2(b)(2)(ii). Although the regulations do not expressly permit computer storage of I-9 forms, some employers have implemented a computer imaging system that allows storage of a picture of the I-9 form in a computer database. Where employers wish to implement such a system, it is prudent to maintain the original I-9 forms in storage, in the event that the INS refuses to accept computer images of I-9 forms.

When keeping track of employees with limited-duration work authorization for purposes of reverification has proved difficult, INS recommends the establishment of a "tickler" system. Depending on the size and sophistication level of the employer, such a system may be as simple as a desk calendar on which handwritten reminders are entered concerning the need to reverify an employee's eligibility to work, or as complex as a computerized tickler system that prints out daily, weekly and/or monthly reminders of the need to reverify work eligibility of specific employees.

Although copying documents is not required -- and does not relieve the employer of the obligation to complete the I-9 form -- such a practice is advisable. If such a copy is made, it must be retained with the I-9 form. In most cases, copies of documents will assist an employer and its counsel in preparing for an INS audit and in defending against claims that appropriate documentation was not demanded or presented. Furthermore, maintaining copies of documents will aid an employer in defending against assertions that it accepted fraudulent documents that it should have known were not genuine.

Finally, maintaining photocopies of documentation that the employer has examined in the course of completing I-9 forms makes it easier for the employer to conduct the periodic audits of its IRCA compliance effort. The OCAHO has found photocopying documents and attaching those copies to the I-9 form to be a mitigating factor in the imposition of a fine.

Practice indicates that the I-9 forms should be kept separate from employee personnel files to avoid charges of discrimination based on the information contained on the forms concerning an employee's age and national origin. In addition, keeping I-9 forms separate from personnel files facilitates their production at the time of an INS audit. It also eliminates the necessity of separating the I-9 forms from the personnel files at the time of an INS audit or producing personnel files for the INS that may contain sensitive or business information to which the INS would not otherwise be privy. Evaluate and Meet Employer's Education and Training Requirements.

Latour and Lleras can assist your company in protecting itself a confidential, internal I-9 audit.

Private I-9 Audit

An important tool to ensure IRCA compliance is the private I-9 audit. These periodic audits can uncover problems while they can still be corrected and before they result in the imposition of sanctions.

Frequently, the I-9 form gets overlooked and is never completed. Even a conscientious employer may have careless or ill-informed staff who do not follow the established guidelines. The periodic audit of an employer's I-9 compliance effort can assist an employer in identifying problems and making corrections to its I-9 forms before the INS decides to make its own inspection of the employer's I-9 forms.

A private I-9 audit of an employer's records will likely reveal a number of correctable errors. Discovery and correction of such mistakes permits an employer to avoid costly penalties and also demonstrates good faith compliance with IRCA's verification requirements. If discovered by the INS, however, such errors would prove to be very costly for an employer.

Because a private I-9 audit can be performed over time it will be less problematic for a company than the a last-minute audit forced by an INS inspection notice. Private I-9 audits can be completed during an employer's non-peak season or over the course of several days or weeks, diminishing both its cost and the disruptive.

A private I-9 audit will also alert the employer to common errors made by managers and find the areas where additional training is needed to ensure IRCA compliance. It will also reveal any systemic problems in an employer's IRCA compliance program, such as the failure to retain necessary records, the failure to reverify when required, and the repetition of errors in the completion of I-9 forms. Once such problems are identified, the employer can take steps to remedy them, thereby avoiding costly penalties.

Latour and Lleras can assist your company in protecting itself a confidential, internal I-9 audit.

Common I-9 Compliance Problems

Employers must ensure that an employee fills out Section 1 of Form I-9 properly and completely. Commonly, employee's fail to sign Section 1, put a check mark in one of the three boxes in Section 1, or select the appropriate box. Employers must ensure that employees correct such mistakes.

Employers are barred from requiring that an employee provide certain documents to complete the Form I-9 and may not call for an employee to show more documentation than the Form I-9 requires.

Work authorization is automatically extended for 240 days for certain nonimmigrants who have filed an application for an extension of their work authorization. An INS receipt for a timely filed extension application may be used as proof of continuing work authorization for a period of 240 days. An employer must accept such a receipt as proof of continuing work authorization.

If an employee is unable to provide a required document within three business days of her or his hiring, the employee may present a receipt for the application for a replacement document within three business days of her or his hiring, but must present the required document within 90 days of her or his hiring. This rule does not apply when an employer reverifies employment authorization for current employees.

It is a violation of IRC to refuse to hire an applicant because he or she has only limited-duration INS work authorization.

Form I-151 expired on March 20, 1996 and is no longer valid for employment verification purposes. It is not necessary for employers to reverify employees who presented Form I-151 as evidence of work authorization prior to March 20, 1996. Employers, however, may not accept Form I-151 as proof of work authorization for any employee hired after March 20, 1996.

INA Section 274C makes it unlawful for a person knowingly: (i) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement under the immigration laws; (ii) to use, attempt to use, possess, obtain, accept, receive, or provide any such document to satisfy an immigration requirement; or (iii) to accept, receive, or provide a document lawfully issued to someone else for the purpose of complying with the employment verification requirements.

Latour and Lleras can assist your company in protecting itself a confidential, internal I-9 audit.

Completion of the I-9

The employment eligibility verification form, Form I-9, is divided into three sections. Section 1 is to be completed by the employee, while Sections 2 and 3 are to be completed by the employer.

Section 1 - The employee is asked to provide basic personal information, including her or his name, address, date of birth, and social security number. The employee also must attest, under penalty of perjury, that he or she is: (i) a citizen or national of the U.S., (ii) a lawful permanent resident, or (iii) an alien authorized to work. In addition, the employee must sign and date the form. Section 1 of the Form I-9 must be completed "at the time of hiring," which means "the actual commencement of employment of an employee for wages or other remuneration." Employers are responsible for ensuring that all employees have properly completed Section 1. Moreover, employers will be held liable for any incorrect information in Section 1, such as a failure to record the expiration date of a time-limited work authorization document.

Section 2 - The employer must verify the identity and work authorization of the employee, and indicate the date upon which employment began. The employer must "physically examine" the required documents and complete Section 2 within "three business days of the hire." By requiring the employer to specify the date on which employment began, the INS can easily determine whether the Form I-9 was completed within three business days of the employee's hire. In examining the documents presented by an employee, the employer must ensure that the employee has presented either a document from "List A" of the "Lists of Acceptable Documents" enumerated in the Form I-9 (such as a current or expired U.S. passport) or both a document from "List B" (such as a driver's license) and a document from "List C" (such as a social security card). "List A" documents establish both identity and work eligibility; "List B" documents establish only identity; and "List C" documents establish only employment authorization.

The employer may not require that the employee present a particular document from the lists of approved documents, nor may the employer require the employee to present more than the required number of documents. Employers who require documentation in excess of what the Form I-9 specifies may violate IRCA's anti-discrimination provisions.

Section 3 - This section is to be used by employers to update and reverify employment authorization. Reverification must be completed on or before the expiration date of the INS work authorization provided by the employee in Section 1, or noted by the employer in Section 2. Upon reverification, employees must present a document showing continuing eligibility to work or a new grant of employment authorization. In reverifying an employee's eligibility to work, the employer must accept any document from "List A" or "List C," including a social security card, as evidence of continuing employment authorization and may not demand an INS work authorization document. An employer violates IRCA by insisting that applicant present INS work authorization card at time of reverification.

Latour and Lleras can assist your company in protecting itself a confidential, internal I-9 audit.

Note: IRCA does not require employers to complete I-9 forms for an employee hired on or before November 6, 1986 (IRCA's effective date), with the exception of certain types of breaks in employment.