Now that the government has announced that employers must take steps to ensure compliance with Form I-9s created on a remote basis no later than August 30, it’s a good time for your company to conduct a self-audit of all of your Form I-9s to ensure that they are correct.

One of the best ways to minimize the risk of Form I-9 errors is to limit the number of people with responsibility for Form I-9 compliance. The fewer the number of people overseeing the I-9 process, the better. This enables one person or a few people to become compliance experts and to understand the nuances of ensuring that the Form is properly filled out in a timely fashion.

The pandemic upended many standard operating procedures, raising the risk of noncompliance with the markedly strict I-9 procedures. As the administrative demands of the pandemic come to an end, conducting an internal I-9 audit (to identify areas of concern, and verify and update records as needed) provides employers with a good-faith compliance shield in the event of an audit carried out by the federal government.

You may not be able to correct every single deficient Form (e.g., those of employees who have left the company), but performing an audit and correcting as many mistakes as possible will provide you with that good-faith protection against being cited and/or fined for violating the Immigration Reform and Control Act of 1986 (IRCA).

An employer must have a Form I-9 for every active employee hired after November 7, 1986. In the case of employees who are no longer working for the company, Form I-9s must be retained either three years from the date of hire or until one year from the date of termination, whichever is later. In no case should an employer discard a Form I-9 for an active employee.

Good-faith compliance is a primary defense in the event of a civil fine or criminal prosecution. In addition to the self-audit described above, other elements of a good-faith response include:

• annual training for the employees who consistently handle I-9s;
• adopting and following standard policies for reverification and I-9 processes;
• correcting Form I-9 errors as soon as they are identified.

These steps should be thoroughly documented to ensure the ability to prove to a federal government auditor what your procedures are, and when they were adopted. As part of its internal audit and correction process, an employer should never discard an existing I-9 but rather work with the employee to correct the original Form I-9, and if the corrections require completing a new Form I-9, append it to the existing Form I-9.

One of the primary benefits of completing an internal audit is to enable the company to review the I-9s at its own pace instead of having to comply with the 10-day notice provided before an Immigration and Customs Enforcement (ICE) audit.

Performing an internal Form I-9 audit requires planning, and the government provides a good tool to organize your audit.

The best way to start an internal I-9 audit is to compare payroll records against I-9 records. Noting the exception above of employees hired before 1986, employers should have a Form I-9 for every current and recently separated employee. Copies of identity documents should be retained according to company procedure.

AIM members with questions about this or other human-resource matter may call the AIM helpline at 1-800-470-6277.