10 steps to prepare for an I-9 audit

Florian J. Dauny

Many employers are unaware of the significance of the I-9 Form. This two-page form, once considered to be a “simple hiring form,” can carry hundreds of thousands of dollars in potential liability, as well as possible criminal penalties for managers and owners, if a company fails to comply with the strict I-9 rules.

In recent months, there has been a significant increase in the number of I-9 audits conducted by the immigration agency. Officers from Immigration and Customs Enforcement (“ICE”) are appearing at local companies, requesting to see copies of all I-9 forms, for all current employees, as well as those terminated in the past three years. Employers are only given 72 hours to comply.

By the time the ICE officers appear, it is often too late to rectify any errors made on the I-9s, which could result in steep financial penalties. Minor technical errors on the form (including failure to complete all required boxes, entering information incorrectly on the form and failure to sign the form) can add up quickly, as fines for simple paperwork violations will range from $110 to $1,100 per I-9 form, depending on the severity of the errors. If illegal workers are discovered as part of the I-9 process, the potential for criminal penalties will arise.

As restaurants have notoriously high employee turnover, the potential for even higher fines is present. To avoid a panic moment, the time to review your company’s I-9 compliance efforts is now—before an audit is initiated. To assist you in this regard, below is a list of basic I-9 tips:

1. Avoid unnecessary liability. Enlist the assistance of counsel to help you audit your restaurant’s I-9s now, and continue to self-audit at least once a year.

2. Be accountable. Choose an I-9 captain to oversee the I-9 process.

3. Do it right: Make sure all I-9s are completed timely and in person (never accept a copy of a document).

4. Avoid document abuse. Never ask for a specific document from your new hire: Always give the new hire the I-9 instruction sheet and allow them to choose the documents they wish to produce (i.e., don’t ever say, “I need to see your license and social security card” or “where is your green card?”).

5. Be consistent. If you maintain photocopies of supporting documents, be sure to do this for all employees.

6. Set reminders. Create an I-9 tickler system to remind you of upcoming expiration dates (for new hires with expiring employment eligibility).  

7. Stay organized. Keep your I-9 files separate from personnel records.

8. Be up to date. Make sure you are using the current version of the I-9 form.

9. Avoid a last-minute scramble. Have a response plan: Who will you call if a government agent initiates an audit? Remember, you only have 72 hours to comply.
 
10. Educate your team. Make sure your team of hiring managers is well informed on the current I-9 rules and conduct regular training to minimize mistakes.

The bottom line is compliance. Restaurants are often popular targets for I-9 audits, and the fine potential can be substantial. Now is the time to educate yourself on the I-9 rules, and take a look at your compliance plan. Getting ahead of this may save your company a significant amount in potential penalties and legal fees.

Florian J. Dauny practices exclusively in the field of immigration law with a special emphasis in business immigration for Fowler White Boggs in Fort Lauderdale, FL.