The recent increase in DOL ICE audits for I-9 violations stands as a live example for organizations' failure in staying compliant. A prevailing gap between the organizations and their ways of attaining I-9 compliance is the main reason for these investigations. To prevent these investigations, employers should conduct internal I-9 audits that can help in ensuring their I-9 compliance.

The below-presented headlines are a few of the many cases registered during the recent fiscal years.  You can witness a drastic increase in ICE raids and penalties which aim at minimizing illegal employment by focusing on employers who are hiring undocumented individuals.

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FY 2017:

In the fiscal year 2017, businesses were ordered to pay $97.6 million in judicial forfeitures, fines, and restitution, and $7.8 million in civil fines for Form I-9 violations.

FY 2018:

ICE conducted 5,981 inspections in the fiscal year 2018 compared with 1,360 inspections in the fiscal year 2017, a 340% increase.

FY 2019:

ICE has conducted more than 6,000 inspections in the FY 2019, while it is expected to double up in the FY 2020.

What can be the solution?

Internal I-9 audits. Yes, the old saying "It is better to be safe than sorry", is true. We are in an era where compliance requirement is considered crucial for any organization, and failure of this is leading to an irrevocable impact on the organization as well as the employer. This, in turn, increases the significance of I-9 compliance, which is the major step in making an organization compliant.

Though most employers are aware of this significance, some of them fail to understand the importance and complexity hidden behind this 2-page document. A single violation in Form I-9 leads to penalties worth millions of dollars. So we can say internal I-9 audits are the need of the hour, to help organizations ensure compliance.

Internal I-9 audits & its purpose     

Just as the name suggests, an internal I-9 audit is a periodic review of the organization's Form I-9s to identify any errors in the I-9 or missing or incomplete I-9s. These audits help in correcting any discrepancies found and ensures the proper completion of all the I-9s, thus making the organization prepare for the ICE audit. Though the law doesn't mandate conducting internal I-9 audits, they ensure compliance with the employer sanctions provision of the Immigration & Naturalization Act (INA). In the previous blog we have discussed about the importance of internal audits. Now, lets take a look at the process of conducting audits.

Conducting internal I-9 audits

Employers can consider Internal I-9 audits as a source to understand where your business stands in the perspective of Form I-9 compliance. These audits also help employers and HR professionals in gaining experience on how to comply if an ICE officer visits for an official audit.

Who can conduct internal I-9 audits?

Your employer can conduct the internal I-9 audits for your organization. If not, the best way to conduct audit is to delegate a  well trained, impartial third-party auditor who can handle the audit.

Here are the steps to assist you in conducting the internal audits according to ICE guidelines:

Selection of I-9s:

The primary step in conducting audits is to decide whether you will audit a sample of I-9s or all of them. But, the process followed for selecting this sample of I-9s should be non-discriminatory.  USCIS/OSC prohibits employers from discriminating against an employee based on their nationality or religion in conducting internal audits. 

Collect Employee data:

Now, the employer has to enlist all the employees hired after 1986 and gather their original Form I-9s or the copies. You should also make a list of all the employees terminated in the last three years and gather their I-9s. This ensures that your organization is retaining the I-9s of your terminated employees until the end of their retention period.

Determine Missing Form I-9s:

Before leaping into the mistakes in I-9, the respective employer should first find out if there are any missing I-9s. If that is the case, you must inform that employee(s) and ask them to complete a new Form I-9 immediately along with submitting the supporting documents. Please make sure that you physically verify the documents and then sign it.
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Never backdate the form to the employee's date of hire.

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Look out for Expired Form I-9s:

Once you enlist the missing Form I-9s, the next important thing is to check if any of the Form I-9s are expired. Yes, there are chances that I-9s can expire if employers failed to updates the form based on the changes in employee's work authorization.

If there is any update in the employee's work authorization,you can fill out the Re-verification & Re-hire (Section - 3) section and complete the Form.

Incorrect version of the form:

Filling the correct version of Form I-9 is of utmost importance. So, make sure that you have used the correct version available during every employee's date of hire. If you have failed to do so, then you have to draft an explanation and attach it to the completed Form I-9, explaining that the wrong form was filled out correctly and in good faith.

Identifying and Correcting Mistakes:

The priority of an audit is to know where to look for errors and how to correct them. If you come across any errors in Form I-9, you can correct them by following the below approach based on the section.  

Errors in Section-1:

Only the employee is responsible for correcting the errors in Section-1, and this is the correction process:

• The respective employee has to draw a line through the incorrect information.
• Now, the employee can write or enter the correct information. Once the corrections are made, the employee should initial and date the correction.
• The employee can take the help of a translator/ preparer if necessary. If the employee takes the help of a preparer or translator, then the preparer/ translator should initial and date the correction next to the employee's initial.

Errors/ Omissions in Section-2 and Section- 3

Only an employer can correct the errors made in Form I-9's Section 2 or Section 3. The employer should also follow the approach similar to that of an employee in correcting errors.

• They should draw a line through the incorrect information
• Now, the employer can enter the correct or omitted information. After completing the correction employer has to initial and date the correction or omitted information.
• If the employer comes across multiple errors in either section-2, then the employer can fill that section in a new Form I-9 and attach it to the previously completed one. Employers should also attach an explanation regarding the changes made along with signing and date the explanation.

After the Internal I-9 audits

Once you are done with the internal I-9 audit, you can meet with your HR team and discuss the result of the audit. This discussion can help you in understanding the ways to ensure your organization's I-9 compliance.

Though internal I-9 audits are the best way to make your organization audit-ready, conducting audits can be really complex and confusing at times. You can always approach a third-party auditor to help you in conducting these audits. OnBlick can help you with that.   

Assistance from OnBlick can guide you with internal audits. Now, your audits can be a hassle-free task along with complying with all the guidelines from ICE.