In 1986, Congress passed the Immigration Reform and Control Act (IRCA) to address concerns about unlawful immigration and the growing number of immigrants lacking proper work authorization in the U.S. The law aimed to strike a balance between enforcement and legalization. This law requires employers to check that all workers are legally allowed to work in the U.S. Employers who knowingly hire, or continue to employ, people without proper work authorization or who fail to follow the rules can face civil and criminal penalties. The IRCA also protects workers from discrimination. Employers cannot treat people unfairly based on their citizenship status or where they are from. They must follow the verification process fairly and cannot ask for specific documents or refuse valid ones just because of a person’s background.
As part of this law, employers must complete a form called Form I-9 for every new employee. This form helps confirm a worker’s identity and legal right to work in the U.S. Employees must present proof of identity and work authorization.
Due to increased enforcement and more focus by the government on employment eligibility matters, employers may wish to conduct an internal audit of their Forms I-9. However, conducting an audit is not something to take on without proper training and a proper workplan, including a pre-audit inventory and a post-audit remediation plan.
Before You Begin: Some Considerations
There are a few key things to think about before undertaking any kind of audit:
Training: Before even beginning the full I-9 audit, HR representatives should undergo a refresher training as well as an audit training. That refresher training should review acceptable documents and “unfair documentary practices.” The U.S. Department of Justice (DOJ) website’s Immigrant and Employee Rights section has many resources and trainings.
Just as important is the Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audit issued jointly by the DOJ and U.S. Immigration and Customs Enforcement (ICE).
Member Resource: Sample I-9 Audit Checklist: Form I-9 Violations to Look for and Correct
Legal consult: HR should also consider speaking to competent legal counsel to ensure that any review and remediation does not compound issues.
E-Verify: This how-to guide does not include information regarding the use of E-Verify. If you use E-Verify, consult U.S. Citizenship and Immigration Services’ (USCIS’) Self-Assessment Guide for E-Verify Direct Access Users. Remember that, among other requirements, organizations using E-Verify must:
- Keep copies of certain List A I-9 documents on file.
- Only accept List B documents with a photo.
- Require a Social Security number on the I-9 (although if the employee has applied for a Social Security number, Section 1 can be updated after the start of work for pay).
Here’s very general guidance on how to conduct an audit on paper Forms I-9.
Step 1: Identify All I-9 Forms on File
Before conducting an audit for violations, employers should first perform an inventory audit to confirm the following:
- I-9 form presence: Ensure that an I-9 exists for every active employee and for all terminated employees within the retention period. If no I-9 exists, mark missing.
- Pro Tip: Employees hired before Nov. 6, 1986, and still employed with the company are not required to have an I-9, but anyone hired (or rehired) on or after that date must have one on file. It’s not necessary to obtain an I-9 for independent contractors or anyone not physically working in the U.S.
- I-9 form location: Verify where each I-9 is stored — whether at a specific worksite, at the company’s headquarters, or within a digital system (specify which system).
- I-9 creation method: Document whether each I-9 was created on paper or electronically.
- If electronic, identify the system used (i.e., which vendor).
- If more than one system, note the same.
- If paper, confirm whether the original wet-signed version is available or if only a scanned or facsimile copy exists.
- If hybrid, note all details above.
- If electronic, identify the system used (i.e., which vendor).
- Form completion and reverification: Check whether all I-9s are fully completed (e.g., ensuring Section 2 is not missing) and whether any employees require reverification with a current Supplement B.
- Also consider recording the current work authorization expirations (even where overdue).
- General compliance trends: Track patterns such as:
- Whether document copies are retained.
- Whether E-Verify queries are noted on the form or attached.
- Whether an audit trail is maintained for electronic I-9s.
A well-organized spreadsheet or database in a shared site should be created to track this information. Remember, you are not identifying individual violations in the inventory step.
Pro Tip: This inventory audit overview is targeted to companies with a least a portion of paper I-9s involved. Companies with all their I-9s created and stored inside a compliant electronic I-9 system will have to consider a different process. Additionally, with the right integrations (such as an HR information system, time and attendance system, or payroll system) established, missing I-9s should already be identified and flagged in the system.
By ensuring that an accurate inventory is conducted, employers can better identify compliance risks before a formal audit takes place. It is also possible to roll the inventory audit into the full audit, assuming you have the right subject matter experts on board.
Member Resource: Understanding Who Needs to Fill Out a Form I-9
Step 2: Organize the I-9s
If you are auditing for more than one location, keep the locations separate and tackle the review of each location separately. Next, organize I-9s into three groups:
- Current employees who do not require reverification (e.g., U.S. citizens or green card holders).
- Terminated employees.
- Employees that require reverifications.
Decide if you will address missing I-9s (and/or missing Section 2s and even missing Supplement Bs) first or if you will wait to conduct the full audit and remediate issues and the missing I-9s at the same time. This is something that should be discussed with company managers and counsel because there are many issues to consider, including operational logistics in some situations.
Prompt: If you are addressing missing I-9s first, continue to Steps 3 and 4; otherwise, move to Step 5.
Step 3: Communicate with Employees About Missing I-9s
Contact employees about missing I-9s or about a missing Section 2 or Supplement B. Verbal communication with the employee may be helpful, but employers should also send an email or a memo to the employee. Keep a copy of all employee communications in an overall Form I-9 audit file.
The written communication should:
- State that the missing I-9 or I-9 sections were discovered during a routine audit.
- Provide instructions for how to complete a new form or part of the form.
- Link to the list of acceptable documents.
- Include what your company policy states about an employee’s failure to provide I-9 documents (e.g., the employee will be placed on leave or terminated).
It is helpful to standardize this communication with a memo template to ensure employees receive the same information.
Pro Tip: You must decide how the I-9 updates will be completed and update the templated language to reflect this. Will your employees meet with you in person? Will you use a friends and family I-9 completer to remediate? Again, this is something to discuss with an expert in the area.
What To Do If an Employee Cannot Remedy Missing I-9 Documents
If an employee does not provide the required documents within the appropriate time frame, the employer should either terminate their employment or place them on a leave of absence based on the company’s policy. Inform them that they may be able to continue work for the organization if they provide proof of eligibility to work in the U.S. by [INSERT DATE] if that is the intention of the organization.
Pro Tip: Consult with legal counsel before terminating a current employee on the grounds that they were unwilling to create a new Form I-9 or unable to produce the required documentation.
In the Case of Lost Documents
Some employees may not be able to find their documents. The USCIS Handbook for Employers states that certain receipts can be accepted for a temporary period in lieu of the actual document. Generally, a receipt for a lost, stolen, or damaged document may be acceptable for 90 days. Document receipts may also be presented for refugees and lawful permanent residents. Receipts that fall outside of the requirements established by USCIS may not be an acceptable replacement for a List A, List B, or List C document.
Step 4: Complete New Forms I-9 with Identified Employees
When the time comes for the appointment, sit down with the employee to complete the Form I-9 using the current paper version of the Form I-9.
Note: If you are now using an electronic I-9 system, these I-9s can be completed in the new system. In fact, the vendor may be able to assist in creating email notifications for applicants or employees, along with an outline of what to expect for the employee.
If filling out a paper form in person, proceed as follows:
- Use the correct dates in filling out the form (e.g., the date of hire on the form should be the employee’s actual date of hire, even if it was years earlier). Sign with today’s date. DO NOT backdate.
- Consider attaching a short memo to the corrected Form I-9 explaining that there was no I-9 on file and that the employee completed the I-9 at the time of the audit. Or, in the case of a large number of employee remediations, consider one memo that lists all the corrected I-9s. This demonstrates the employer is making a good faith effort to be in compliance.
- Add the completed I-9 to the appropriate file and update the tracker.
Next, verify the employee’s I-9 documents as you would when filling out any new I-9.
Pro Tip: Remember, employers cannot require or prefer one document over others. If the documents appear genuine, relate to the person presenting them, are not expired, and are allowed according to the list of acceptable documents on the most current Form I-9, they should be accepted.
Note: If using alternative methods for the completion of I-9s, such as a third party to review the documentation on behalf of the company, ensure that HR representatives review the document copies and perform a quality control check on the completed Form I-9.
Step 5: Audit I-9 Forms of Current Employees
This step is the most grueling part of the I-9 auditing process because a number of items must be properly completed to ensure compliance. In addition to the USCIS Handbook for Employers, the I-9 Central section of the USCIS website provides additional information on the entire I-9 process. Keep these resources handy because they answer many questions about properly completing Forms I-9.
Set Up Your Audit Tracker
Employers should consider the most efficient way to conduct and track violations. Some employers will use a spreadsheet-based chart, others a database. Some employers mark errors on a cover sheet for each I-9 and also record in a centralized location. There are many considerations, and HR representatives should not undertake an audit without proper training.
Auditing should also include reviewing for fraudulent documents (if copies were maintained) and fraud indicators.
Pro Tip: Many employers audit a sample of I-9s first with experienced counsel to help set up a system and identify initial concerns. This is highly recommended. In certain circumstances — especially if there is a concern for immigrants lacking proper work authorization — a legal partner can ensure the audit findings are privileged.
Looking for Errors
Review the following information in each section of Form I-9. This list of I-9 violations can serve as a guide for reviewing individual I-9s but should not be considered a full list of violations. Common violations include:
- Name, address, or date of birth missing, incomplete, or incorrect.
- “Authorized to work until” date missing or incorrect
- Employee signature missing or dated after employee’s first day of paid work
- Unacceptable or expired document recorded in Section 2.
- Missing key information for document, such as title, issuing authority, or expiration.
- Employer signature missing or dated more than three days after employee’s first day of work.
- Name change or rehire date missing or incorrect in Supplement B.
- Reverification document information missing or incorrect.
Errors Around Document Copies
Although not required for those that do not use E-Verify, some employers choose to attach copies of the identification documents to the Form I-9. Copying identity and work eligibility documents is a best practice and can assist during auditing and can also lower fines during a government review. Aside from the E-Verify requirements to retain photocopies, an employer voluntarily choosing to retain photocopies must ensure that photocopies are kept consistently for all employees, according to the Handbook for Employers.
If the employer has been and will continue photocopying employment authorization and identity documents, the audit may reveal missing photocopies. If this is the case:
- Do not ask employees for copies of those documents during the audit.
- Just ensure consistency moving forward in your document copy policy.
- The only exception to this is if you are an E-Verify employer and you did not keep copies of documents that require a photo match.
Member Resource: I-9 Compliance: To Copy or Not to Copy?
Step 6: Correct Errors
The baseline inventory audit findings can help populate your tracker to record errors. Employers should isolate the I-9 forms that contain errors and decide how they will track the specifics, including remediation status, on that sheet.
In addition to the violations themselves, the sheet should note administrative information such as the type of error and whether an employee must present new documents. There are many ways to set up an audit tracker. Here is one example:
| Last Name | First Name | Location | Date of Hire/Rehire | SSN (last four) | Errors(s) by section | Who must correct? | Requires a call? | Status (E.g. Error corrected, still open) |
|---|---|---|---|---|---|---|---|---|
Smith
| John | Denver | 12/1/2022 | 1234 | Signature missing in section 1 | Employee | No | Still open |
Tips for Correcting
USCIS has guidance on how to physically correct I-9s, but training is necessary to understand how to correct certain errors, including duplicate I-9s with errors on both. Work through each incorrect I-9, consulting USCIS resources for guidance on how to correct each error. General best practices for correction include:
- Ensure it clearly shows that a change is a correction.
- Use a differently colored ink from what was used on the form originally.
- Ensure changes are initialed (first initial, full last name) and dated with the current date.
- Legal counsel suggests recording the full name of the recorder making the updates or changes.
- Never backdate.
- Never make a correction for the employee in Section 1 — they should be addressing any issues directly.
Note: When Homeland Security Investigations finds technical or procedural failures during an I-9 inspection, the employer has at least 10 business days to make corrections. An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures after that time.
When to Use a New I-9
In some instances, there may be so many errors that using the original I-9 would be prohibitive. If so, here’s how to proceed:
- The employee should complete and sign a new I-9 using the current date.
- The employer or employer’s proxy should enter the employee’s correct hire date in Section 2.
- The employer must verify the employee’s employment eligibility documents in Section 2.
- The original form should be stapled to the new I-9.
- Again, the employer should write a memo explaining why there are two I-9 forms and attach it to the I-9s. Only the newest version of the Form I-9 should be utilized in this case.
As the employer corrects each I-9 form, it should add the correction to its Form I-9 log, if it decides to keep such a log. The decision on whether to do so should be considered in conjunction with legal counsel.
Step 7: Remediate I-9 Forms for Terminated Employees
Once an employee is terminated from the company, employers are required to retain I-9s for three years after the employee’s date of hire or for one year following their date of termination, whichever date is later.
Employers will need to decide if they want to tackle substantive errors for terminated employees. If error corrections are needed on terminated employees’ I-9 forms, use a process similar to the one outlined in Step 6, even though employers will be unable to correct any errors that require the former employee’s input (e.g., missing documentation or a missing signature).
Pro Tip: All corrections and instances in which the employer was unable to make corrections should be noted on the Form I-9 audit log and on an attached memo.
Step 8: Complete the Audit
As corrections are made and missing I-9s begin to come in:
- Organize the I-9s: Clearly document the steps taken during the audit. Employers may wish to include a printed copy of this procedure to document the process they followed during the audit process.
- Retain the Form I-9 audit logs: Store any audit trackers and communications to employees regarding the I-9 audit process. Additionally, keep the audit documentation in a separate Form I-9 audit file or place this documentation in their files with the I-9 forms.
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