Labor/Employment Law

ABCs of Immigration: Conducting an I-9 Audit

By Bruce E. Buchanan

Which questions should be asked when preparing for a Form I-9 audit?

In order for the auditor to assess Immigration Reform and Control Act (IRCA) compliance practices, he or she needs to interview the employer to determine the following:

Are Forms I-9 completed by a single office in the organization? In the case that they are not, in what manner is this responsibility divided?
If the responsibility for the forms is centralized, how many people are responsible and who are they?
Has each person responsible for Forms I-9 received training in immigration compliance and immigration-related anti-discrimination rules?
Is the employer in possession of a manual or electronic Form I-9 system? If the latter, which specific system is used and when was its implementation date?
Where are the employee files kept, and are they kept in good physical order?
Are Forms I-9 consistently completed on the date of hire? If completed prior to the date of hire, is the form ever completed before the employee has been offered the position and has accepted the offer of employment?
Does the employer instruct employees which documents to present?
Has the employer ever revoked a job offer or terminated an employee because of an upcoming expiration date in Section 1 of the Form I-9?
Before signing Section 2 of the Form I-9, do the employees responsible for the Forms I-9 actually review the original Lists A, B, and C documents in order to determine whether the documents reasonably appear to be genuine and whether they relate to the employee in question?
Does the employer have a system in place to identify and destroy Forms I-9 for terminated employees who are no longer required to be maintained after the retention period?
Does the company keep copies of Section 2 documents in all cases, none, or sometimes? If sometimes, what is the reason behind this inconsistency?
Does the employer have a tickler system to re-verify work authorization and to complete Section 3 of forms requiring such re-verification? Describe the system.
When was the last time an audit was conducted? Was it a full or partial audit? Provide a copy of the audit.
Has the employer had previous immigration audits or been previously audited regarding immigration matters? If this is the case, outline the results.
Has the employer ever received a Social Security no-match letter?
Does the employer use E-Verify?
Does the employer have contracts with government agencies? If so, which government agencies? If so, does the employer use Federal Acquisition Regulation (FAR) E-Verify?
Is the employer compliant with all state laws on immigration compliance?
Has the employer had its Forms I-9 inspected by ICE?

Should employers prepare a spreadsheet for a Form I-9 audit?

Yes. This spreadsheet needs to include the following information:

The names of all current employees hired since the company opened or since November 8, 1986, whichever is later.
The date of hire of each employee.
The names of all former employees terminated within the last three years.
The date of termination for each employee no longer employed.
Dates of rehire and termination if an employee’s period of employment has been periodic.
Whether a Form I-9 has been located for the current employees identified by payroll records as having been employed by the company since the company opened or since November 8, 1986, whichever is later.
For terminated employees in the last three years, whether Forms I-9 are retained.
Do Forms I-9 need to be retained for all employees terminated in the last three years?
Have the Forms I-9 for employees that no longer have to be retained been purged?

Whether all Forms I-9 records or a random selection for current employees are to be pulled for review is dependent upon the size, budget, immigration history, and overall vulnerability of an employer. In the event a random selection is chosen, the selection should be varied in terms of departments, type of employee, dates of hire, and whether the employee’s form must be re-verified. Similarly, this is applicable to former employees terminated in the past three years, though a random selection is more likely to be applied than such a sample of current employees.

Should employers use an audit checklist?

Yes. The following should be considered by employers:

Section 1. Employee Information and Verification

Is the employee’s name correct, and is it precisely identical to the employer’s records and the supporting documents?
Is the employee’s Social Security number properly stated?
Is the date of birth properly stated?
Is the employee’s address properly stated?
Is one of the boxes checked stating the employee is a U.S. citizen, foreign national, lawful permanent resident, or employment-authorized alien?
With regards to the previously mentioned checkbox, is the employee has indicated that he or she is a lawful permanent or an employment-authorized alien, has the applicable “Alien” or Admission number” been included and is there an expiration date?
With regards to the previous question, if the employee has indicated himself or herself to be an employment-authorized alien, has he or she stated the employment authorization’s expiration date?
Has the employee signed his or her name?
Has the employee dated the signature either on or before the first date of employment?
If either a translator or preparer has been used, has that person signed and dated the attestation, printed his or her name, and provided his or her address?
If a translator or preparer was not used, did the employer check the appropriate box to indicate this?

Section 2. Employer Review and Verification

List A (Only to be completed if applicable)

If a List A document is used, has a proper document been referenced?
If a List A document is used, has the issuing authority been listed?
If a List A document is used, has a document number been provided?
If a List A document is used, has the document expiration date been provided?
If, instead of the actual document, a receipt for a List A document is provided, has the original document been presented within 90 days of presenting the receipt?
If a List A document is provided, has the employer left all of the information in List B and C blank?

List B (Only to be completed if applicable)

If a List B document is used, has a proper document been referenced?
If a List B document is used, has the issuing authority been listed?
If a List B document is used, has a document number been provided?
If a List B document is used, has the document expiration date been provided?
If, instead of the actual document, a receipt for a List B document is provided, has the original document been presented within 90 days of presenting the receipt?
If a List B document is provided, has the employer left all of the information in List A and C blank?

List C (Only to be completed if applicable)

If a List C document is used, has a proper document been referenced?
If a List C document is used, has the issuing authority been listed?
If a List C document is used, has a document number been provided?
If a List C document is used, has the document expiration date been provided?
If, instead of the actual document, a receipt for a List C document is provided, has the original document been presented within 90 days of presenting the receipt?
If a List C document is provided, has the employer left all of the information in List A and B blank?

Documentation

Are copies of the List or List B/C documents included in the Form I-9 file, and do they appear genuine?
If the documents were not provided on the date of hire, was Section 2 completed and the documents shown no later than the third business day after the first day of employment?
Do the documents presented appear consistent with the status described in Section 1 (for example, a lawful permanent resident card is shown, but the applicant says he is a U.S. citizen)?

Employer Certification

Has an authorized representative of the company completed this portion of the form?
Has the authorized representative properly listed the date he or she examined the documents?
Has the authorized representative signed within three days of the first day of employment?
Has the authorized representative signed the form?
Has the authorized representative printed his or her name?
Has the authorized representative listed his or her title?
Has the employer’s name and address been properly stated?
Has the authorized representative dated the form?

Section 3. Employer Rehire and Reverification (Complete only if applicable)

If the employee provided an expiration date for work authorization in Section 1, has Section 3 been completed before the passing of that date?
In the event of a name change, has the new name been provided?
If the employee is a rehire, has the rehire date been provided?
If re-verification is necessary, has a proper document been presented demonstrating continuing employment authorization?
If a rehire, does the prior documentation need re-verification?
Has a document title been properly stated?
Has the document number been properly stated?
Has the new expiration date been properly stated?
Has the authorized representative of the company properly signed Section 3?
Has the authorized representative dated Section 3?

If you are interested in learning more about immigration compliance, I invite you to read The I-9 and E-Verify Handbook, a book that I co-authored with Greg Siskind, available at http://www.amazon.com/dp/0997083379.