Heard It on the Hotline: Form I-9 Audits

Q: How do we successfully conduct a Form I-9 Audit?

A: Due to the COVID-19 pandemic, employers were allowed to let List B documents expire without updating them. That temporary policy ended July 31, 2022, and employers were expected to have updated any expired documents for current employees no later than that date. Also, employers that were operating remotely were allowed to inspect Section 2 documents virtually (e.g., over video link, fax, email, etc.). This was extended through July 31, 2023, for employees hired on or after April 1, 2021, as long as the employee works exclusively in a remote setting due to COVID-19-related precautions. It is anticipated that this will be a permanent alternative in the Form I-9 process.

These temporary policies have prompted many employers to audit existing Form I-9s and supporting documentation. If your organization has had multiple administrators managing the process, there is a high probability an internal audit is needed.

The current version of Form I-9 has an expiration date of October 31, 2022, although employers are advised to continue using it until the updated version is released. However, this gives employers another reason to review the documents on file. Notable changes to the new form include:

• Compressing Sections 1 and 2 to one page.
• Making Section 3 (used for rehires and reverifications) stand-alone and separately accessible.
• Providing a USCIS webpage link so current List C acceptable documents can be viewed.
• Reducing the instructions from 15 pages to seven pages.
• Making forms more compatible with more electronic devices and systems.

Form I-9 audits can be conducted in several ways. One option is to review each Form I-9 and verify the information. This can be time-consuming and is most commonly done in smaller organizations. Another option is to randomly select a small batch of employees to audit. If using this method, be sure to include a group large enough to incorporate various scenarios (age, gender, citizenship, ethnic background, and date of hire) to avoid conducting a discriminatory audit. This method should be conducted on a regular basis to capture and correct as many errors as possible.

Keep these tips in mind during your audit:

• Employers are required to have a completed, signed, and authorized Form I-9 for each employee hired after November 1986. Employees hired prior to that do not need to have a Form I-9 on file.
• All documents should be verified by a representative of the company within three business days after the first day of employment.
• Form I-9s should be kept in a separate file, electronic record, or binder (not in individual personnel files). The forms need to be easily accessible in the event of a Homeland Security audit.
• The form retention requirement is three years from the first day worked, if the employee worked less than two years. If the employee worked longer than two years, the retention requirement is one year after the date of termination.
• Internal audits should not be conducted based on an employee’s citizenship status or national origin, or in retaliation against any employee or employees for any reason. An employer should also consider whether the audit is, or could be perceived as discriminatory or retaliatory based on its timing, scope, or selective nature.
• Employers should be transparent about an audit and inform employees that, if errors are detected, they will work with the individual to make the necessary corrections.
• An audit record should be completed to capture the process that was used and changes made to any Form I-9.
• The employer cannot make corrections in Section 1. The employee can make a correction by striking out the incorrect information, entering the correct information, initialing, and dating the form.
• If Section 2 or 3 is incomplete, it can be updated and noted on the same form.
  • Avoid backdating the form, except when entering original dates if they are missing from Section 2. Otherwise, use current dates and attach an explanation for any changes.
  • If there is an error, cross through the incorrect information, make the correction, and attach an explanation describing why the changes were made.
  • Errors should not be erased or concealed. Doing so may result in increased liability under immigration law.
• Section 3 must be completed when an employee’s employment authorization has expired, or the name of an employee has been legally changed. Employers may choose to complete Section 3 for an employee who is rehired within three years of the date a prior Form I-9 was completed.
• A new Form I-9 can be completed if multiple errors are found, or information is missing. In that instance, attach the old Form I-9 to the new Form I-9. New forms must be completed if the employee is rehired more than three years after the date a prior Form I-9 was completed, using the most current version of Form I-9 available.
• If you are missing a Form I-9 for a current employee, both the employee and employer should complete the current version of Form I-9. If you are missing a Form I-9 for a terminated employee, it should be noted in the audit record. No additional follow-up is required.
• Employment authorization documents from List A and List C may expire, so obtain updates prior to expiration. Employers may want to keep a separate log to ensure compliance.
• Prior to engaging in the hiring process, it is important that you confirm the applicant is eligible to work in the United States and that the applicant has the appropriate sponsorship, if necessary. Working with an immigration attorney is advised.

Additional information to assist employers with conducting a Form I-9 audit include:

Will Your Form I-9s Hold Up to an Audit? - MRA

Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits – U.S. Immigration and Customs Enforcement (ICE)