Due to Heightened I-9 Scrutiny Under Trump Administration, Employers Should Proactively Audit Their I-9 Compliance

To complete the form, the employee must present documents from the US Department of Homeland Security’s List of Acceptable Documents to prove both identity and work authorization. Generally, if that work authorization expires, employers must reverify work authorization on the form by inspecting additional acceptable documents before the initial work authorization expiration date. There are rules and standards instructing employers how to retain I-9’s and for how long.

President Trump has increased immigration investigation efforts as promised. He has started with US Immigration and Customs Enforcement (ICE) raids, deportation efforts, and workplace investigations. I-9 investigations are likely coming in short order. If an employer receives a Notice of Inspection from ICE, typically, employers only have three days to respond with the requested I-9 records. Accordingly, employers should get their records in order now. To accomplish that, employers should conduct a proactive and internal I-9 audit to fix as many deficiencies as they can. Employers who proactively correct their I-9’s can take advantage of the “good faith compliance” defense and receive credit for those corrections during a governmental audit, mitigating potential penalties.

We can help you structure and conduct an efficient and effective internal I-9 audit. What should the scope of the audit be? Should you audit all records or a sampling? How far back should you look? How can corrections be made to get the benefit of the good faith compliance defense? What should you do if an I-9 is missing for an employee? What if the wrong edition of the form was used at the time of hire? Should you reach out to former employees for corrections? Can you use electronic signatures? Can you retain I-9’s electronically? What if an employee confesses to submitting false documentation? How long should you keep I-9’s, and can you or should you purge I-9’s? We can answer these questions and more for you.

For assistance, please contact Berin S. Romagnolo or Nancy A. Noonan.