Employers have been required to comply with the Form I-9 practices set forth by the federal government since the 1986 Immigration Reform and Control Act was passed. What is new is that in recent years there has been an uptick in U.S. Immigration and Customs Enforcement audits, and that has many employers feeling anxious about their compliance status. It leaves many companies wondering exactly what is a Form I-9 Audit and what they can do to prepare.
What Is a Form I-9 Audit and Why Should You Care?
When the above act passed, it mandated that employers complete a Form I-9 for every employee, with the purpose of verifying their eligibility to legally work within the United States. The process can sound deceivingly simple, except for the following details:
- The form has more than one thousand regulations.
- There is an instructional manual of more than one hundred pages.
- There are three different sections with very unique and specific guidelines and deadlines.
In other words, the process is far more complex than completing a form, and the more complicated a procedure becomes, the greater margin there can be for mistakes. Even mistakes that are caught have to be corrected according to exact procedure or it could become an even bigger issue. Unfortunately, Form I-9 errors can make for nightmare audits.
With the recent increase in the number of audits happening nationwide, employers can no longer simply hope that they are compliant in the rare event they should be audited. Even the most diligent employers who operate without an extra resource, such as digital I-9 software, are at greater risk of making a small mistake. The problem is that a small mistake can yield hundreds if not thousands of dollars’ worth of fines, especially if the mistake is repeated on multiple forms.
The good news is that with the help of resources like digital I-9 software created with the knowledge and experience of immigration attorneys, employers can add an extra layer of protection to their process, ensuring that they have better chances of being found compliant should they be audited.
What to Expect in the Event of an Audit
It is prudent for employers to protect themselves in the event that they are audited instead of just hoping that they are not. An audit can happen to any business at any time, and that is largely out of an employer’s control. What is in their control is to be as prepared as they can be and know what to expect:
- The Notice of Inspection. This is often the first acknowledgement that ICE will be conducting an audit. Being presented with this notice means an employer must give the auditing party all requested I-9 Forms and relevant documents concerning documentation, licenses, payroll, etc. within three business days. While it is normal to feel the pressure of an impending audit you should request time to ensure accuracy in collecting this information to ensure it is done correctly. In some limited cases, an extension may be possible.
- Notification of designated company personnel. Most companies upon receiving a Notice of Inspection will reach out to their human resources department, CEO, and even legal counsel to ensure that the business’ rights are being protected amidst the audit.
- Penalties. If a violation is discovered in an audit, it can result in punitive fines and other consequences. It is worth noting that penalties are either civil or criminal in nature and can be given to both employees that are not authorized to work and their employers. Employers should also be aware that the fallout from compliance violations of the Form I-9 can go beyond fines to include bad publicity, partial or full loss of work force, and potentially the loss of an employer’s right to continue doing business.
- Corrections window. Should there be technical or procedural Form I-9 issues discovered in the audit, the employer is usually given a window of ten days to make the necessary corrections. At the end of that time, if the corrections are not accurate, the violations can result in a Notice of Intent to Fine.
- Notice of Intent to Fine. Within thirty days of the receipt of this type of notice, an employer can either work to reach a settlement or request an official hearing.
How to Be Better Prepared for an Audit
No business looks forward to an audit, but the chances are decent that your business could be subjected to one. There are several steps employers can take to be better prepared for a Form I-9 audit, including:
- Properly training staff working with Form I-9 completion and management. One of the keys to ensuring protocol is followed to the letter for the Form I-9 is to properly train the individuals involved in that process. It can be wise to host trainings several times a year for the purpose of review as well as educating new staff.
- Enlist the help of digital I-9 software for an added layer of protection. Modern software is designed to streamline the process while helping to minimize common human errors such as blank or incomplete fields or missing signatures on a form. The system is designed to alert the employer so the mistake can be addressed before it is officially submitted.
- Regularly perform a self-audit to help catch issues before an official audit takes place. A reputable digital I-9 software program will come with a feature that enables an employer to perform a self-audit to be more proactive in preparing for official audits.
While employers may be wondering what to expect from a Form I-9 audit, the real question they should be asking is if they are ready for the audit? The best ways to be prepared for an audit are to be proactive, give attention to details, and rely on industry resources such as digital I-9 software.