In an election year, immigration issues remain front page news.  With continuing scrutiny on immigration and employment, prudent employers should periodically conduct internal I-9 self-audits to ensure that its I-9 paperwork is complete and accurate.  In this morning’s guest post, Chris Taylor, immigration lawyer and publisher of the Texas Immigration Law Blog, gives us his tips for conducting effective I-9 self-audits.

Tips For Conducting An Internal Audit Of Form I-9s

From my experience, an employer can never be fully prepared for an I-9 audit; however, a prudent employer can have a firm grasp on what the government will likely find by conducting an internal audit.  A trained eye can spot deficiencies very quickly but having a process can make things much easier for the untrained eye.  I have outlined three basic steps and identified common mistakes for the prudent employer to consider when conducting an internal audit.


The most common mistake that could lead an agent to raise an unnecessary eyebrow is finding a mistake on an I-9 that was not needed in the first place.  The golden rule is that "less is more" meaning that an employer should not keep I-9s that it does not absolutely have to.  While the employer may mean well and want to show that it has nothing to hide, an unnecessary I-9 has no upside but can cause tremendous harm by making agents overly suspicious.

The employer’s first mistake is retaining an I-9 for an employee who is exempt from the I-9 requirement.  This usually occurs when the employer has long-term employees.  Employees hired on or before November 6, 1986, are exempt from the I-9 requirement, unless that employee left the company and was rehired after November 6, 1986.

Another common mistake is keeping an I-9 past the mandatory time.  If an employee is terminated, an employer must keep the I-9 for three years after the employee was hired or one year after termination, whichever is later.  An employer should not retain the I-9 of a terminated employee when it can lawfully dispose of it.  Why unnecessarily raise eyebrows?  An employer also does not need I-9s for independent contractors.


This means looking at each I-9 to ensure that it complies with immigration regulations.  Begin with Section 1 and ensure that everything is filled in correctly and legibly.  The most common mistake that I have seen is a missing employee signature.  Make sure that the employee has signed Section 1.  Another common mistake is that the employee forgets to check his or her status, e.g. U.S. citizen or legal permanent resident. 

The only caveat for Section 1 is that there is technically no requirement that an employee fill in his social security number.  That part is optional, unless the employer participates in the E-verify program.  Requiring an employee to give their social security number could be deemed unlawful discrimination.  If the employer is not using E-verify, it can disregard the social security number portion.  If an employee does provide his social security number, the employer should check for any blatant errors.

A common mistake in Section 2 is that the employer fails to put all the necessary information in the verification section, such as expiration dates.  An employer should make sure that the employee lists the expiration date for drivers’ licenses and other identification.  Another common mistake is when the employer’s representative fails to sign Section 2.  Employers should sign the form and put the employer’s entire address.  It takes time, but better safe then sorry.

Another tip for Section 2, employers are not required to make photocopies of the documents presented unless it is using E-verify.  If the employer is not using E-verify, then it should not keep copies of the documents.  If an employer retains copies the supporting documents it must then do so for all of its employees.  Plus, the employer’s only requirement is to  see if the documents are fraudulent on their face.  Why keep a copy of these documents so that a highly trained agent can second guess your work?  Don’t keep copies. 


ICE takes storage very seriously.  Improper storage of I-9’s can result in fines.  For instance, Abercrombie & Fitch paid a fine of over $1 million due to technology problems related to its electronic storage system.  A&F didn’t have any undocumented aliens or problems with the actual documents themselves; merely problems with the technology related to the storage of those documents.  Thus, if you want to use an electronic system make sure you have a reputable program.  If you use the old-fashioned paper system, make sure that the I-9s are stored separate from the other employee files and that you know who has access to them.  The name of the game is "limited access."

A self audit can be a time-consuming process, and I truly suggest speaking to an attorney that is familiar with the immigration regulations.  However, if you choose to conduct your own internal audit, these tips should help you get started.

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