The Department of Homeland Security and its enforcement arm, Immigration and Customs Enforcement or ICE, is stepping up immigration compliance audits in the workplace. The construction industry in particular has been targeted for more enforcement effort. Today, the government’s enforcement efforts begin with an audit of your I-9 forms. In order to avoid severe penalties and the risk of criminal prosecution, prudent employers will periodically audit their I-9 compliance and correct paperwork problems. Here is how you do that.
The first step is to make a list of all employees that you have hired since the I-9 law was enacted on November 6, 1986. Your list should include last name, first name, date of birth, date of hire, and date of termination if any. If someone has worked for you on more than one occasion, your list should show each period of employment separately.
Next, you will want to calculate the applicable retention dates so that you can determine which forms you do not have to have on file. The law requires you to keep forms for three years from the date of hire AND for one year from the date of termination. Thus, the easiest thing to do is calculate the date that is three years prior to your audit and the date that is one year prior to your audit. If someone was hired prior to the former date AND terminated prior to the latter date, you need not retain the form for that person. If that is the case, cross that name off the list. What remains is a list of all workers for whom you need to have an I-9 form on file.
Now begin checking your I-9 forms to make sure that they are properly completed. As you review each form, put a checkmark next to that name on the list. If you are missing information on the form, fill it in. If you need the employee’s assistance to do so, call the employee in and ask the employee to sign or date the form as necessary. It is a good idea to put the words “self audit” next to any changes or additions you make to the form. If information needs to be changed, do not erase or obliterate the incorrect information or cover it up with correction fluid or tape. Instead, simply line through what is incorrect, and insert the correct information, writing in the margin if necessary.
If the certification in section 2 of the form was not signed or dated, then you will need to examine the employee’s identification and/or employment authorization documents in order to make the section 2 certification. Do not backdate the form or otherwise insert incorrect information. Remember, however, that a late but complete I-9 form is far better than a missing or incorrect form. It is far less likely that you will face severe penalties if you have all the forms you need to and they are filled out completely, even if some of them may be late.
Bear in mind that there are some forms that simply cannot be fixed. If section 1 of the form was not signed before employment commenced, or if section 2 of the form was signed more than three days after work commenced, there is simply nothing that you can do to fix a late completion problem. Similarly, if the employee did not attest to his or her citizenship status and is no longer employed, it is unlikely that you can determine this and fix the form.
Once you have reviewed and corrected all of your I-9 forms, go back to your list to see if you have any names that do not have check marks next to them. These are the persons for whom you are missing the form, and you should immediately take steps to get a new form completed. Again, a late form is better than not having one at all.
As you go through the correction process, be aware of recurring problems that might suggest the need for training. Remember also that you cannot simply attach photocopies of the I-9 documents to the form; the form itself must be properly completed.