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Tips To Reduce Liability During an I-9 Audit

The Immigration Customs and Enforcement division (“ICE”) of the Department of Homeland Security continues to issue Form I-9 Notices of Inspection to businesses, both large and small. These inspections have resulted in fines and, in some cases, criminal arrests of Company owners or managers.  The Notices of Inspection require employers to allow ICE access to review all its I-9 forms within three days after the notice has been issued.  The inspection includes the I-9 forms of current and recently terminated employees, in addition to payroll records, a list of current employees and evidence of the Company’s ownership.  Because of this short time frame, employers must be prepared in advance of receiving an ICE notice.

As an IMAGE member and business partner with ICE, PMP has the expertise that can assist companies to reduce their liability during an ICE I-9 audit.  It is recommended that employers conduct self-audits, but only if they are well versed in the latest ICE regulations.  Otherwise, please seek PMP’s assistance in performing a mock audit before ICE comes knocking at your door.  If an error is found during the self-audit, there are acceptable procedures that can be used to correct them.  However, policies and procedures must be put into place so that similar errors do not occur in the future.

The following tips should be reviewed to assure that your policies and procedures are in compliance:

  1. Use the correct form.  Employers were required to use the new I-9 form dated 3/8/2013 starting on May 7, 2013.

  2.  The form must be completed in accordance with strict ICE guidelines:  An employee must complete Section 1 by the first day of employment and the employer must complete Section 2 including reviewing and certifying the documents no later than the end of the third business day after the employee’s first day of employment.

  3. If an employee needs assistance in filling out the form, be sure that the preparer/translator completes the appropriate part of Section 1

  4. DO NOT require or even suggest that an employee provide a specific document (i.e.-passport, driver’s license, etc.).  The employee should be given the list of acceptable documents from which to choose.

  5.  When reviewing employee documents, assess whether the document reasonably appears to be genuine.  While it is not the Company’s job to act as a detective, you should not accept a document which appears blatantly falsified.

  6. All documents presented must be unexpired at the time they are presented for completion of Section 2.

  7. The employer should have a system of informing an employee of the expiration of their work-authorization well in advance of the expiration date (90 days is suggested) so the employee can re-apply for an extension before the document expires.  DO NOT allow any employee to continue working once the work authorization has expired!

  8. Keep I-9 forms in a separate binder for current employees and another binder for terminated employees.  This facilitates the removal of employees from the “active” to the “terminated” binder.  It is highly recommended that I-9s not be kept in personnel files due to the confidential information on the form.

Civil penalties for errors on the I-9 form range from $110 to $1,100 per violation and the penalties are increased to between $375 to $3200 per violation for first time violators if it is determined that an employer hired an unauthorized worker .  In determining the exact penalty assessment, ICE will consider factors such as the size of the business, the seriousness of the violation and whether the employer had undertaken efforts to comply.  These penalties are easily preventable if your Company adheres to the procedures I have outlined above.

It is important to note that employers cannot accept Taxpayer Identification Numbers (also known as “TIN”) for purposes of completing the I-9 forms.  TINS are not one of the documents accepted by ICE and do not satisfy the legal requirements.

********** This article is intended for general information only and should not be construed as legal advice.


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