What Every Employer Needs to Know about I-9 Self-Audits

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The recent DOJ ruling, issued June 30, increased the fine for errors on I-9 forms. The changes went into affect on August 1 of this year. Form I-9 is the Employment Eligibility Verification Form that employers use to ensure their employees are who they say they are and that they’re eligible to work within the United States.

Employers must complete an I-9 form for every employee they hire, both citizens and non-citizens—and they must be in compliance with the Immigration Reform and Control Act (IRCA), which prohibits employers from discriminating against workers based on citizenship or national origin. Fines for uncorrected errors in I-9 forms have seen a significant increase, making companies more invested than ever in conducting internal audits to spot mistakes.

Self-auditing these forms can be an intimidating task. We’ve broken down the best practices every employer should follow when self-auditing their I-9 forms, according to the joint guidelines issued by the Department of Justice and Department of Homeland Security.

The purpose of internal I-9 audits

Self-audits aren’t required, but many employers find them helpful in staying compliant with the Immigration and Nationality Act (INA) and avoiding hefty penalties.

Some companies may audit only a sample of their I-9s. If an employer chooses to audit a segment of their I-9 forms, they must be careful to avoid choosing their sample based on discriminatory or retaliatory practices. Even perceived discrimination can land employers in trouble, so it’s crucial that they use neutral criteria to select their sample.

Employers should review their sample selection and ask these questions to help avoid discrimination and retaliation:

  • Could the timing of this audit make it appear that we are retaliating against one or more employees for any reason?
  • Could the selection of forms chosen for this audit appear to be discriminatory against any employees based on their nation of origin or citizenship?
  • Could the scope of this audit lead employees to believe we are discriminating or retaliating against a particular employee or group of employees?

I-9 self-audits can be a valuable way for employers to ensure their compliance with INA, but performing a self-audit incorrectly can land them in hot water. Employers should consider bringing on a temporary attorney to guide them through the I-9 self-auditing process. Contact one of our locations today to find out how we can help you with your internal I-9 audit.

How to communicate with employees about an I-9 audit

A transparent communication system will make the auditing process smoother for everyone. Employers should notify workers in advance and in writing that an internal I-9 audit is taking place. Employees may not understand what the audit entails, so it’s important to explain what will happen during the audit and who employees should get in touch with if they have any questions. (Don’t forget to provide all communication in workers’ native language if they aren’t proficient in English!)

Open communication is especially important if there’s a problem with an employee’s I-9 form. If any errors or omissions are found during the audit, the employer should privately alert the worker to the problem and provide them with copies of their I-9 form. This is the first step to successfully correcting I-9 errors.

Best practices for I-9 corrections

“Most I-9 violations are considered continuing violations until they are corrected,” according to the National Law Review. Following these best practices will help employers clean up any I-9 errors quickly and efficiently:

  • Correct errors and complete missing I-9 forms as soon as possible.
  • Ask the employee to correct any Section 1 errors by crossing out the incorrect information and entering the correct information, along with their initials and the date.
  • Any I-9s that can’t be corrected should be attached to a signed and dated statement explaining the error and the reason for failure to correct the error.
  • Do not erase, backdate or use correction fluid on incorrect I-9 forms.

The key to a successful I-9 self-audit

Internal I-9 audits are a useful tool in helping employers avoid violations, but they aren’t foolproof. Even employers who conduct regular self-audits are subject to penalties for discrimination or retaliation.

An experienced attorney can guide you through your internal audit and help you avoid penalties and violations. Get in touch with one of our Special Counsel locations to find an attorney who can partner with you in your next I-9 self-audit.

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