Self-Auditing Your I-9 Forms? Know These Rules

New guidance from federal regulators cautions employers conducting internal audits of their I-9 forms against engaging in discriminatory practices.

According to Immigration and Customs Enforcement (ICE), employers are increasingly conducting internal audits of their I-9 forms. ICE and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) have collaborated on formal guidance to help ensure that these audits are conducted properly and do not discriminate against workers.

“Both agencies recognize that the increase of internal I-9 audits during the past few years has increased the danger of making mistakes, particularly with respect to unlawful discrimination,” remarked John Fay, vice president and general counsel at LawLogix, a Phoenix-based software company specializing in cloud-based immigration and compliance services. During the past few years, the OSC has been cracking down on employers that engage in identity document discrimination, Fay said. “It’s only natural that the agency would also take a keen interest in the I-9 correction process as well.”

Self-Audits Are Not Required

Internal I-9 audits are not required by law but can be extremely helpful to employers, said Bruce Buchanan, an immigration attorney in the Nashville, Tenn., office of Siskind Susser. “However, they do not offer immunity if ICE conducts an inspection.”

Employers may choose to review all forms or a sample of forms based on neutral and nondiscriminatory criteria, according to the guidance. If a subset of I-9 forms is audited, the employer should consider carefully how it chooses those forms to avoid retaliating against workers or discriminating against employees based on their citizenship status or national origin.

Be Transparent

Employers should inform employees in writing that an internal audit of I-9 forms will take place and explain the scope and reason for the audit, the guidance recommends. Other recommendations include:

• Notifying the worker, in private, when a deficiency is discovered on his or her form.
• Providing the employee with copies of his or her form, along with any accompanying documentation showing the alleged deficiency.
• Communicating in the worker’s native language if he or she is not proficient in English, where possible.
• Providing clear instructions for employees on where to get more information on how to resolve questions or concerns about the audit. “Some employers provide FAQs with their self-audit notice, or at the very least, designate one or two individuals who will be available to answer any questions which may arise,” Fay said.

Correcting Errors

The guidance provides detailed information on the procedure for correcting Form I-9 errors or omissions. For example:

• Only employees should correct errors or omissions in Section 1 of the form. Only employers should correct errors or omissions in Sections 2 and 3.
• Corrections should be made by drawing a line through the incorrect information, entering the corrected or omitted data, and initialing and dating the correction.
• Employers should complete a new I-9 as soon as possible if the form was never completed or is missing.
• Sections of the form should be completed as soon as possible if never completed. In this case, the form should not be backdated, but should state the actual date employment began in the certification portion of Section 2. A signed and dated explanation of the corrective action should be attached. Employers that made multiple errors in Section 2 or 3 of the form may redo the section(s) containing the errors on a new Form I-9, and attach it to the previously completed form. Employers must give employees the opportunity to present acceptable documentation of the employee’s choice to bring the Form I-9 into compliance.
• Employers should attach a signed and dated statement identifying any errors or omissions and explaining why corrections could not be made if the employee is no longer working at the organization.
• Employers should not conceal any changes made on the form—for example, by erasing text or using correction fluid.

If an audit reveals that the wrong version of the Form I-9 was completed, the guidance states that as long as the Form I-9 documentation presented was acceptable under the rules that were current at the time of hire, the employer may correct the error by stapling the outdated, completed form to a current, blank version, and note why the current, blank version is attached.

Relatedly, employers should not assume documentation in Section 2 is insufficient simply because it does not satisfy current Form I-9 rules or appear on the lists of acceptable documents currently in effect. The lists of acceptable documents have changed over the years and documentation presented for Section 2 is sufficient as long as the documentation was acceptable under the requirements in effect at the time the form was completed.

Questionable Documents

Employers are required to accept original Form I-9 documentation that “reasonably appears to be genuine” and that relates to the person presenting the documentation. If employers conclude during an audit that a document does not appear to be legitimate, they are instructed to address any concerns with the employee and provide him or her the opportunity to choose a different document to present. Employers cannot request specific documents.

The guidance warns against requesting documentation from an employee solely because photocopies of documents are unclear.

When Employees Admit They’re Unauthorized to Work

It is illegal to continue to employ a worker knowing that he or she is unauthorized for employment. However, the guidance states that employers should provide employees who admit that they are not work-authorized a reasonable amount of time to produce documents establishing their work authorization, Buchanan said.

“It does not state what is an acceptable time period. Instead, the reasonableness of a time frame should be determined on a case-by-case basis. But, it does state an employer should not summarily discharge employees without providing a process for resolving the issue.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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