As you all know, you must complete an I-9 for all new hires. And, as of last May, you should be using the most recent I-9 form. The U.S. Department of Homeland Security’s Immigration Customs and Enforcement (ICE) takes I-9’s very seriously and while I-9s are not difficult to complete, the penalties for not having them completed properly can be significant.
If ICE decides to audit you, you will first receive a Notice of Inspection (NOI) and ICE will want I-9 documentation within three business days. This is not a lot of time and you need to be prepared.
Before ICE knocks on your door, we recommend you review your I-9s to make sure that they are completed properly. If they are not completed properly, you can make the necessary changes, but, as discussed below, mark and date the changes clearly.
Your first step should be to pull a headcount report of all employees and make sure you have an I-9 for each employee. If you don’t have I-9s for each employee, then you need to complete them and date them on the date you complete them. Do not back date them. As tempting as it may seem, you will have more problems with ICE if they figure out you back dated documents than failed to fill them out during the hiring process.
Once you know that all of your employees have I-9s, then you need to review each I-9 to make sure it was completed properly. Again, if you need to make corrections, make them plainly and date them on the date you made the correction. Finally, you will need to look for expired support documents. Some of the documents you made copies of for the I-9 have expiration dates. If the documents have expired, you need to get copies of the re-issued documents and update the employee’s information in section 3—Re-Verification. If the employee does not have updated documents, you need to assess the situation to determine whether the employee is authorized to work.
We strongly recommend that you conduct an internal I-9 audit to correct any deficiencies in your I-9 process. With the assistance of an experienced attorney, companies may be able to minimize if not eliminate penalties from an ICE Audit.