Should You Conduct an I-9 Audit?

By Marylou V. Fabbo - Skoler, Abbott & Presser, P.C.

July 12, 2017

Pull three I-9 forms out of your I-9 file.  Now take a careful look at them.  Is every section that needs to be completed fully and accurately completed?  Is Section 1, the Section the employee is required to fill out, complete, dated and signed?  (Social Security numbers are optional, so that space may be blank.)  Do you know the difference between a Lawful Permanent Resident and An Alien Authorized to Work?  Is the Employer’s Section, Section 2, completely filled out?  Does the List A document or the List B and C documents section contain all information, including the Issuing Authority?  Is the employee’s first date of employment included? Are photocopies of the documents the employee presented attached and, if so, why?

Given the current government’s crackdown on illegal immigration, the U.S. Immigration and Customs Enforcement (ICE) and the Department of Justice’s Civil Rights Division are expected to substantially increase the number of I-9 audits conducted and are likely to impose penalties when discovering violations.  For example, Panda Express recently paid $600,000 to settle claims that it discriminated against immigrant workers when verifying them for employment.  Panda Express is alleged to have required immigrant workers to provide documents that they weren’t legally obligated to provide and also made some immigrant employees re-verify their work eligibility even though they weren’t required to do so.  Panda Express admitted no liability in connection with the settlement, so we don’t know if it intentionally took those actions or whether its company’s representative simply was not aware of all the proper protocols for completing I-9 forms and/or re-verifying work eligibility. Are you?

A common I-9 error, and what Panda Express may have been accused of, is requiring an employee who has a List A document, such as a Lawful Permanent Resident Card (a/k/a “Green Card”), to also provide some other documentation such as a social security card.  Because a Lawful Permanent Resident Card is a List A document, no other documentation can be required.  Take a look at your I-9s.  If there is a valid List A document, did someone, likely in error, also include a List B or List C document?  Did you know that even if a Lawful Permanent Resident Card has an expiration date that has not passed at hire, you cannot re-verify the employee once the document has expired?  Another common error is listing the wrong issuing authority for documents, such as listing “USA” as the issuing authority for a social security card instead of the Social Security Administration or the Department of Health and Human Services.  Even these kinds of seemingly minor technical errors can lead to penalties for employers.

Audits often start with an unexpected visit to your place of business. Your company may be a target, or a disgruntled employee may have dropped a (anonymous) dime claiming that some of your employees may not be authorized to work in the U.S.  So, take a look at your audit files; if you find a few incorrect I-9s, it is time to conduct a full audit.  If you’re not knowledgeable about I-9 requirements, you should consider hiring an attorney to conduct them and provide legal guidance on how to correct them.  “Correcting” an I-9 incorrectly defeats the purpose of an audit.  While an internal audit does not insulate companies from penalties for violations, an audit that identifies problems can provide guidance for employers going forward.