Given the increased focus on employers’ immigration-related compliance efforts, many companies are conducting Form I-9 audits.  While all companies are well-advised to conduct a Form I-9 audit annually (or immediately if one has not been conducted within the last year), conducting one without the relevant expertise can do more harm than good.  My favorite and therefore often repeated phrase regarding immigration compliance is, “Form I-9s are complex.”  That bears repeating in bold – Form I-9s are complex.       

Form I-9s are one of the most misunderstood federal government forms.  The form is not a simple linear document with blanks that need to be filled.  Rather, the Form I-9 is an interactive process with numerous rules (most of which do not appear on the face of the form) that must be followed.  To ICE and the DOJ, the procedure and manner by which the Form I-9 is completed is just as important as the information provided on the form.  And, it is the procedure and manner by which a Form I-9 is completed that most often gets employers into trouble (e.g., Abercrombie & Fitch settlement). 

As a result, employers can get themselves into a heap of trouble by trying to correct mistakes on the Form I-9 in an inappropriate manner.  For example, I’ve heard many times, “Why can’t we just populate the missing information from our HR system into Section 1 of the Form?” (only the employee can complete Section 1) or another one of my favorites, “The employee only completed List B and List C, but did not complete List A.  We need to call her in and have her complete List A” (employers should not accept more than the required documentation).  These procedural missteps could cost the employer significant penalties including, but not limited to fines, debarment and negative publicity.

Corrections to the Form I-9, like those described above, can make matters far worse for the employer than the original error.  As another example, some employers will correct a missing employee signature in Section 1 by creating a new Form I-9, often stating that the old Form I-9 is “out of date” and needs to be “redone.”  The employer then destroys the original Form I-9 leaving it no method to prove that it complied with the timing requirements of the Form I-9.  Further, the employer has just made it clear to ICE that not only was the employer not fully compliant with the Form I-9 procedure when that employee was hired (which may have been as early as 1986), the employer is even worse at it now – not a good position to be in. 

Unfortunately, these mistakes occur because most HR personnel responsible for the Form I-9 process have little to no formal training.  While lack of Form I-9 training is extremely risky in today’s enforcement environment, even more risky is allowing HR personnel to conduct an audit of their own work.  The use of independent, experienced auditors is key.

All employers should absolutely be conducting Form I-9 audits.  However, employers should tread carefully and ensure that they involve experienced immigration counsel in their auditing.  With the assistance of competent counsel, audits can play double duty and not only get existing Form I-9s in order, but also serve as an excellent training exercise for the employer’s HR personnel.