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Volume XII, Number 275


September 30, 2022

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New Guidance for I-9 Self Audits

Recently, the U.S. Immigration and Customs Enforcement (which enforces I-9 compliance) and the Office of Special Counsel (which enforces the anti-discrimination portion of the Immigration and Naturalization Act) issued a joint “Guidance” for employers conducting internal I-9 audits.

The Guidance provides some practical tips on conducting an internal audit of I-9 forms, including:

  1. Review all I-9s or a subset that is randomly selected. Do not select a group of I-9s to audit based on the nationality or race of the employees who completed the I-9s.

  2. To correct an error, draw a line through the incorrect information, enter the correct information and initial and date the correction. Do not conceal the incorrect information (using whiteout or a marker) or erase the incorrect information.

  3. Do not backdate corrected I-9 forms.

  4. If you need to add information that was incorrectly left out, insert the new information and sign and date the addition.

  5. Deficiencies in Section 1 of the I-9 form should not be corrected by the employer. Only the employee should correct Section 1. If the employee is no longer available, attach a memorandum to the deficient I-9 noting that a correction is not possible because the employee is not available.

  6. If the audit shows that the wrong version of the I-9 form was used, make a note and attach it to the outdated I-9. There is no need to complete a new I-9. 

  7. If you discover that an I-9 form was not completed, you should complete a new form using the current version and attach a note to the I-9 form as to why it was completed at a later date.

  8. When correcting a deficiency based on a missing document or an incorrect document, allow the employee to choose which of the acceptable I-9 documents they want to use to correct the problem.

  9. Never require the presentation of specific documents when completing or correcting an I-9 form. The employee may choose any combination of acceptable documents to present.

  10. When an employee comes forward with a new identity, you may continue to employ them but are not required to do so. Have the employee complete a new I-9 form and attach it to the old I-9 form. Attach a note to the I-9 forms explaining the situation.

  11. If the audit shows you have missed using E-Verify when you were required to, submit the matters to E-Verify. We are reminded not to terminate employees that receive Tentative Non-Confirmation in E-Verify system.

  12. If an employee confesses that he or she is not authorized to work during an audit (or at any other time), you cannot legally continue to employ them.

  13. If a question arises during an audit regarding the validity of a document, and the employee asserts that they are authorized to work, the employee must present a new document. You can give the employee a reasonable amount of time to obtain the document. Interestingly, the Guidance notes that some documents may take 120 days to obtain. The reasonableness of the time given to obtain a new document is judged on a case-by-case basis. Make notes in the file on the time given and any need for an extension.

  14. You do not need to audit an employee’s I-9 form if you receive an anonymous tip or information that is not reliable regarding that employee’s authorization to work.

  15. Do not use the Social Security Number Notification Service as part of your audit of I-9 forms.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 7

About this Author

Jose Olivieri, Michael Best Law Firm, Higher Education, Labor and Immigration Attorney
Partner, Industry Group Chair

José is the founder and co-chair of Michael Best’s immigration law practice. Clients depend on his deep knowledge of and experience with U.S. immigration law and employment-based immigration matters, including:

  • Immigration status

  • Permanent labor certification

  • National interest waiver

  • Adjustment of status

  • Consular processing

  • Citizenship and...

Kelly M. Fortier, Michael Best Law Firm, Business immigration, Attorney

Kelly helps employers of all sizes meet their staffing needs by handling the immigration issues they face in hiring foreign nationals and moving employees around the globe.

A partner in the firm’s Labor and Employment Relations practice group and Co-chair of the Immigration and International Migration team, she handles compliance issues for corporations that transfer dozens of employees into and out of the United States each year as well as small companies seeking to bring in a few key hires from abroad.

Kelly is highly...

Kelly Rourke, Michael Best Law Firm, Immigration and Employment Attorney

Kelly assists employers with administrative law matters, focusing her practice primarily on employment-based immigration.

She regularly helps clients meet critical staffing needs by obtaining nonimmigrant status for foreign workers and securing and maintaining legal permanent residence for foreign nationals. To this end, she handles an array of nonimmigrant petitions, applications for labor certification, adjustment of status and naturalization filings, consular processing matters, motions to reopen, and motions to reconsider. She also...