What Triggers An I-9 Audit and How to Avoid One

Immigration policies have been hotly debated in America for decades. However, since the passing of the Immigration Reform and Control Act of 1986 the Form I-9 has periodically changed, as have some of the requirements and rules, however, much has remained the same. Despite the long tenure of the Form I-9, employers sometimes overlook their responsibilities, discounting their risk associated with non-compliance. The odds that a company could be subject to an Immigration and Customs Enforcement (ICE) audit can be somewhat dependent on the state of operations and the business’ industry. Common hiring practices in some industries can make a company particularly vulnerable when there is high turnover, largely low-wage and/or hourly labor pools (e.g., food production and preparation, construction, staffing agencies, or landscaping are a few industry examples that experience a higher rate of inspection). Prudent employers understand various scenarios that can trigger an I-9 audit and they proactively establish a program of ownership who is tasked with the responsibility for ensuring periodic review of the company’s on-boarding practices and I-9 procedures to ensure compliance success.

What can trigger an external I-9 audit (an ICE “Notice of Inspection”)?

Though situations can vary depending on the employer, there are five common reasons for an impromptu I-9 audit:

  1. Disgruntled former employees contacting authorities
  2. Complaints from job applicants who were denied jobs
  3. Current employees notifying authorities over a discrimination concern
  4. Homeland Security’s systematic review of their own database could prompt random selection to review an employers I-9 data if they recognize any anomalies
  5. Information from other State or Federal agencies (e.g., Department of Justice, Internal Revenue Service, Federal Bureau of Investigation or Department of Labor)

What some employers may not know is if a company is found to be out of compliance during an audit the business may be penalized with much more than just the proverbial slap on the hand. A company’s accumulation of violations can result in hefty punitive fines, a partial or full loss of workforce, or even the loss of a business license.

The good news for employers is that all of these painful consequences are avoidable by understanding the proper Form I-9 procedures and utilizing valuable resources such as digital I-9 software, achieving a compliant status for the company is within reach if managed proactively.

Common Areas of Focus in an I-9 Audit

Although it is just one seemingly insignificant form, there can be big implications for a company that does not follow the proper protocol for completing and maintaining an I-9 form for all employees (current and former employees from recent years). There are three main parts to the Form I-9, each with a unique set of instructions and deadlines. The failure to adhere to any of these guidelines or deadlines can result in a company being found non-compliant.

  • Section 1: The first section of the Form I-9 deals primarily with gathering the employee’s personal information, and it must be completed by all employees on or before the employee’s first day on the job. It is critical that employees fill out this section 1) after they have accepted a job offer and 2) complete it in its entirety. The employer representative is required to review Section 1 and verify it is filled out completely by the employee. Additionally, employees must provide employers with the acceptable List A or List B and C identification documents listed on the Form I-9 on their hire date. These must be original documents and not copies. Receipts for lost, stolen or damaged documents may be provided if they conform to the USCIS receipt rules outlined in the Handbook for Employers M-274 (Section 4.3).
  • Section 2: The second section of the form must be completed by a representative of the employer within three business days of the employee’s date of hire. The employer, in good faith, must thoroughly examine the original documents (again from the I-9 List A or List B and C documents) to confirm each appears to be authentic and satisfies evidence of the employee’s eligibility to work in the United States.
  • Section 3: The last section of the form is primarily the employer’s responsibility in the event that an employee legally changes their name, has temporary work authorization (recorded in Section 2) that expires, or is rehired and a prior I-9 is used to verify at the time of employee’s new employment on-boarding.

How to Stay I-9 Compliant

By following the instructions on the Form I-9 which are well defined in the USCIS M-274 Handbook for Employers, companies can be much closer to achieving and maintaining a compliant status. However, there are some careless and easy to make mistakes that can put compliance in jeopardy. It is worth noting that by utilizing digital I-9 software, companies can have an added layer of protection in catching many of these common human errors.

Some common Form I-9 mistakes that can threaten compliance can include:

  • Incomplete Forms. Forms must be filled out completely and accurately, which translates to no blank or incomplete fields or missing signatures.
  • Improper Form. All I-9 Forms have a shelf life with an expiration date and an employer could be subject to penalties for simply using the wrong version of the form.
  • Improper Document Retention. Employers should closely follow the I-9 rules (three years from an employee’s hire date or one year from their termination date, whichever is later of the two) for the I-9 retention for all terminated employees.
  • Lack of Organization. Misplaced, missing or incomplete forms create significant compliance deficiency during an audit.
  • Inability to Meet Deadlines. By missing a deadline required by USCIS for completing the form, employers are putting the company’s compliant status at risk.
  • Failure to Follow Up. Form I-9 guidelines also apply follow up responsibilities in the case that an employee’s work authorization status* is set to expire at a future date during the intended employment period, or perhaps failing to track the 90-day validity period for a receipt that may have been provided for Section 2. *(Employers should notify these employees appropriately 120 days in advance of an expiring work authorization document.)

The Top 5 Ways Digital I-9 Software Can Help

The responsibility for the entire Form I-9 process from start to finish can be overwhelming for employers, especially those that do not utilize additional resources such as digital I-9 software and are completing a paper version of the form. Digital I-9 software is designed to be user friendly and walk employers through a step-by-step workflow to complete the Form I-9 while helping minimize human error.

The top five ways digital I-9 software can help with compliance includes:

  1. Digitization. This feature digitizes forms which enables the software program to identify common errors such as incomplete fields or missing signatures.
  2. Deadline Alerts. The software should also provide timely alerts to remind employers about upcoming Form I-9 deadlines.
  3. Expiration Alerts. This feature of a digital I-9 software provides automatic alerts and/or a user dashboard alerting employers of upcoming expiration dates on documents so they can take timely action to update the employee’s I-9 form.
  4. Centralized Reporting. The program should assist a company in periodically viewing their compliance status instead of finding out where they stand amidst an official audit.
  5. E-Verify Integration. Automatic submission of the completed I-9 data to the E-Verify webservices site and the tracking of employee E-Verify case numbers and employment verification outcomes from this government agency. This feature offers a tremendous timesaving benefit to employers.

With the help of digital I-9 software, companies can have confidence in being proactive and do not have to live in fear of an ICE audit or raid. Let Lookout Services Inc. work with you to stay compliant with your I-9 and E-Verify responsibilities.

Leave a Reply