Private Sector Employers: How to Conduct an Internal I-9 Audit Given the New Administration’s Focus on Immigration Enforcement

With just weeks into the new federal administration, there have been significant changes to workplace laws. In particular, the administration has a renewed focus on immigration and compliance enforcement and has issued executive orders aimed at reshaping immigration policies. In preparation for the expected uptick in I-9 audits conducted by Immigration and Customs Enforcement (ICE), employers should conduct an internal I-9 audit. Here is how to do so.

Step 1. Gather all I-9 forms on file for current employees. There should be one for every current employee who performs work. Current employees have the highest priority. However, employers are also required to keep I-9 forms for terminated employees for three years after their hire or one year after their termination, whichever is later. Gather all I-9 forms on file for such terminated employees and keep them separately from the I-9 forms for current employees. Employers should not have or keep I-9 forms for non-employees such as independent contractors and consultants.

Step 2. Make a list of all current employees who do not have I-9 forms on file. Obtain I-9 forms for all of the employees on the list. Where an employee is unable to find their documents, certain receipts may be acceptable for a specific period of time in lieu of the actual document. Such receipts include a receipt showing the employee has applied to replace a lost document, the arrival portion of Form I-94 (Arrival-Departure Record) containing a temporary form I-551 stamp and a photo of the employee, of the departure portion of Form I-94 with a refugee admission stamp. These are temporary alternative documents and the time period they are valid varies. If the employee cannot provide the required documents within the time frame allowed by the employer, the employee should be terminated or placed on a leave of absence until the documents are provided.

Step 3. Individually audit each of the I-9 forms for current employees. Technical errors may be corrected on the existing I-9 form but substantive errors may require completion of a new I-9 form. Keep an audit log of the I-9 forms that contain errors. The log should show the employee’s name, the errors found, the corrections taken and the date of such corrections. This will show a good faith effort to comply with the law.  

Step 4. Use the same auditing process above for the former employees for whom the I-9 forms are on file. Review this file periodically to remove I-9 forms that are no longer required to be retained.  

By completing this internal audit, employers improve their compliance with federal employment and immigration regulations, demonstrate a good faith effort to comply with these laws, and will be better prepared to receive an external audit request from ICE.