I-9 Compliance Audits

The word “audit” can strike fear into the greatest of companies, regardless of how competent their Human Resources departments may be or how meticulously they keep their records. It is not uncommon for companies to think they are completely compliant in their I-9 procedures, only to find out through an ICE (U.S. Immigration and Customs Enforcement) audit that they are not, and are subject to significant penalties as a result.

What is the I-9 Employment Eligibility Verification form?

The I-9 is a form created and required by the U.S. government to show that employed individuals are authorized to work in the United States. The law requires all employers to complete and keep an I-9 for all employees hired after November 6, 1986, regardless of what the employer believes the employee’s immigration status to be.

Why should my company worry about complying with I-9 laws?

Employers that fail to comply with proper I-9 procedures and record keeping are subject to an intensive audit process by ICE, and significant fines and penalties. Those may include fines of up to $3,200 per violation for first time violators, up to $6,500 per violation for second timers, and up to $16,000 per violation for third timers.

The issue is whether the employee is authorized to work legally in the United States, not whether he or she is a citizen or permanent resident.

Many employers mistakenly believe that they can only hire a “citizen”, or that they have to make judgment calls on whether the employee is “legal”. This misconception can subject the employer to claims of discrimination based upon the would-be employee’s race, ethnicity or nationality. In reality, many people are authorized to work in the U.S. who are neither citizens nor permanent residents.

Employers who follow the simple I-9 procedures properly can protect themselves not only from ICE audits and penalties, but also from discrimination claims. Employers should develop a standard protocol for interviewing, offering employment, filling out I-9 forms and verifying supporting documentation, and storing I-9 files. Employers should follow the same practices for all employees and potential employees, regardless of race, legal status, national origin, etc.

Employers should also complete I-9 forms and verify documentation for every employee, even if you are absolutely certain that he or she was born in the U.S.

Properly Filling Out The I-9 Form
Employers must fill out Section 1 of the I-9 form on the first day of employment. Employers must fill out Section 2 and verify the employee’s supporting documents within three business days of hiring the employee.

To satisfy Section 2, the employee must either present one document from List A, or a document from both List B and List C. Employers should never instruct the employees which documents they will accept. If it is on the list, the employer must accept it. Employers are not required to be insurers of the veracity of the documents. Employers are only required to make a reasonable determination that the documents presented by the employee appear to be valid.

In addition, employers should never require the employee to present more documents than are required by the I-9 forms, unless of course it is required by a Notice of Suspect Document in an ICE audit (see below). Also, employers should never use I-9 forms and/or supporting documents to pre-screen potential employees.

Retaining The I-9 And Supporting Documents

Employers must keep the I-9 and copies of supporting documents for at least three years after the date of hire, or one year after employment is terminated, whichever is later. Employers should store the completed and signed I-9 forms and copies of supporting documentation in a safe place, but in a manner that will allow the employer to access and produce the documents within three days if necessary. We suggest that the employer maintain the I-9 and supporting documents separate from the other employee files, preferably in a separate filing cabinet.

ICE Audits

ICE initiates the audit process by issuing a Notice of Inspection (NOI), which is a notice that ICE intends to audit the company’s I-9 records. U.S. law (8 CFR §274a.2(b)(2)(ii)) requires that a company must be provided at least three days’ notice prior to an inspection of the I-9 forms. The NOI generally requires the company to produce the I-9 forms and all supporting documentation for all current and former employees for the past three years. ICE can also require production of additional documentation, including business licenses, employee lists, payroll lists, corporate documents, etc.

After inspecting the I-9 forms and supporting document, ICE will either:

i. notify company that it is in compliance (Notice of Inspection Results), or
ii. issue one of several notices, including:

1. Notice of Technical or Procedural Failures – The company will have 10 days to correct deficiencies;
2. Notice of Suspect Documents – The employer must notify the employees on the list who were suspected of having suspect documents. Employees then have a “reasonable time” to produce new documentation to prove legal work status (ICE says that 10 days is reasonable). If the employee fails to produce valid documents within reasonable time, the employer must terminate the employee.

Failure To Comply
If the employer is still not in compliance after issuance of the notices described above, ICE may issue Notice of Intent to Fine (NIF), which is a charging document that notifies the employer of the allegations against it. At that point, employer can either:

iii. Negotiate a settlement with ICE, or

iv. Request a hearing with the Office of the Chief Administrative Hearing Officer (OCAHO) within 30 days of receipt of the NIF

If no settlement is reached and employer is found to be in violation, ICE can issue fines of up to $3,200 per violation for first time violators, up to $6,500 per violation for second timers, and up to $16,000 per violation for third timers.

I-9 Audits Are On The Rise

There was a 496% increase in NOI issuance from fiscal year 2008 to fiscal year 2011, including an unprecedented 1,000 NOIs issued in one day on June 15, 2011. In fiscal year 2011, ICE issued over $10 million in fines nationwide, almost 15 times the amount issued in 2008.

Employment Verification Laws Specific To Colorado
Colorado law (C.R.S. § 8-2-122) requires employers to complete and submit an Affirmation of Legal Work Status form within 20 days of hiring a new employee for work in Colorado, which verifies the following:

v.The employer has examined the legal work status of the new employee;

vi. The employer has retained file copies of the documents required by 8 U.S.C. sec. 1324a (commonly referred to as “Form I-9 identity and employment authorization documents”);

vii. The employer has not altered or falsified these documents;

viii. The employer has not knowingly hired an illegal alien.

Colorado law (C.R.S. §§ 8-17.5-101 & 102) also requires all employers who have public contracts for services with state agencies or political subdivisions to either use E-Verify or an alternate program developed by the Colorado Department of Labor in order to verify the work eligibility of all employees I-9 compliance can be quite complicated, and should be discussed thoroughly with an attorney.

The attorneys at Deere Law, LLC consult with companies and their human resources departments regarding I-9 issues, and conduct internal audits to help clients prepare for ICE audits.

Call us today at (719) 633-3377, or email us, to find out why the I-9 compliance attorney Josh Deere at Deere Law, LLC has received an AV Preeminent® Peer Review Rating from Martindale-Hubbell® in Immigration Law; a Superb, 10 out of 10 rating in Immigration Law, and a “Client’s Choice” award from Avvo, a national lawyer rating service; and a Colorado Springs’ TOP ATTORNEYS award by Colorado Springs Style Magazine.