The United States Immigration and Customs Enforcement (ICE)  may audit Form I-9s to assess employees’ employment eligibility and employers’ compliance with immigration laws.

How Should Employers Ensure Compliance?

All employers must have a Form I-9 for each employee working in US and employed after November 6, 1986. While employers are not required to file these forms with ICE, employers must keep these forms in the company’s file for current as well as past employees to ensure availability of I-9s during an ICE audit. Form I-9s should be kept for 3 years after the employment date or 1 year after the termination date, whichever date comes later.

What to Expect from an ICE Investigation?

The Immigration and Customs Enforcement may initialize an investigation through Notice of Inspection (NOI) requesting production of I-9s. ICE may request the following additional documentation:

  • Corporate documents
  • Business licenses
  • Payroll copies
  • Employee lists

Employers’ Form I-9 Compliance: How to Avoid Costly Errors?

Below are some suggestions that may protect you from unfavorable inspection results. However, every situation is unique, and the advice of a qualified attorney is appropriate to determine From I-9 compliance.

  • If you’ve completed Form I-9 late (which you should always avoid), never backdate an I-9 as that would be considered fraud.
  • Fill out Form I-9 required information completely, even if you retain copies of the requested documents.
  • Timely request the proof of continued employment eligibility if you hire a person whose authorization to work is expiring.
  • However, do not reconfirm employment eligibility by requesting new documents when you have been presented with an unexpired green card.
  • Employers and employees should sign and date the form; otherwise, an employer may have committed a substantive error.
  • Develop training and guidelines for human resources or other employees who will be completing I-9s on your behalf.

How Can an Attorney Help Me?

Employers may need to contact a qualified immigration attorney or contract attorney to develop consistent practices of compliance and oversight with respect to acquiring and retaining employment eligibility verifications.

A qualified attorney may also ensure that employers don’t violate Immigration and Nationality Act (INA) anti-discrimination provisions or other state and federal antidiscrimination laws.