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Now is the Time to Conduct an Internal Assessment of Your I-9 Forms
December 31, 1969
Often times given short shrift during the employee on-boarding process, I-9 forms may soon become the bane of existence for human resources departments across the country.  In April 2009, Janet Napolitano, Secretary of the Department of Homeland Security, issued a guidance stating that Immigration and Customs Enforcement (“ICE”) would be focusing its resources on worksite enforcement of immigration laws, specifically on the criminal prosecution of employers who knowingly hire illegal workers.  This pronouncement was quickly followed up by action, as ICE-issued Notices of Inspection to 652 businesses on July 1, 2009 – compared to 508 notices issued during 2008 in its entirety.

Companies may be selected for an I-9 audit by ICE based upon information obtained through other investigations, tips from outside parties (including, at times, unions), or data obtained through the E-Verify system.  Additionally, the Department of Homeland Security has a Memorandum of Understanding with the Department of Labor ("DOL") which encourages the Wage and Hour Division of DOL to review I-9 Forms as a part of the wage and hour audits it conducts.

Top 10 Reasons to Conduct an Internal I-9 Assessment

The Immigration Reform and Control Act of 1986 (“IRCA”) requires employers to complete an I-9 form for each employee hired after November 6, 1986 and verify that the new employee is authorized to work in the United States.  Many companies have I-9 forms on file that were completed by a variety of past human resources and other personnel with varying degrees of training and competence in completing I-9 forms.

Companies should consider conducting an internal assessment of their I-9 forms for the following reasons:

  1. To ensure that all employees hired after November 6, 1986 have a completed I-9 form on file.  Companies may face civil penalties of $110 to $1,100 for each instance of the failure to maintain an I-9 form for an employee.
  2. To verify that all employees are authorized to work in the United States.  Companies may face civil penalties of $375 to $3,200 for the first offense for each unauthorized worker.  The penalties rise with subsequent offenses, culminating in criminal penalties, civil penalties, imprisonment, and debarment from federal contracts for engaging in a pattern or practice of knowingly hiring or continuing to employ unauthorized workers.
  3. To review whether the work authorization of employees with time-limited employment authorization has been re-verified.

  4. To eliminate “paperwork violations,” which include forms with missing or inaccurate information, information recorded in the wrong location, or forms with too much information.  Companies may face civil penalties of $110 to $1,100 for each paperwork violation.  ICE has taken the position that each mistake on a single I-9 form is a separate violation.  Companies should consult counsel before correcting any paperwork violations.

  5. To be ready in the event of an unannounced audit by ICE.

  6. To provide a good faith defense in the event that unauthorized workers are discovered through an ICE or DOL audit.

  7. To review internal policies and procedures related to the I-9 process, including the completion of the form, review of documents showing employment authorization, and how and where I-9 forms are maintained for current and past employees.

  8. To ensure that your company does not “over document” or otherwise engage in discriminatory conduct that violates IRCA.

  9. To provide training to all personnel responsible for completing the I-9 process.

  10. To ensure your company is using the current I-9 form and list of acceptable documents for all new employees, which became effective on April 3, 2009 and mandatory on May 18, 2009.  The form contains a revision date of February 2, 2009 in the lower right-hand corner.
For information on conducting an internal assessment or any other immigration or employment law compliance advice, please contact Larissa Dean at 304.291.7924 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it , or any other attorney in Spilman Thomas & Battle, PLLC’s Labor and Employment practice group.