How to Respond to an I-9 Inquiry

Posted by Wendy Katz on February 23, 2021 at 10:30 AM
Wendy Katz

Being prepared for an I-9 inspection makes all the difference in maintaining uninterrupted business operations and avoiding fines. This article will explore what an I-9 inspection is, how you can prepare for it, and some potential responses your company may receive after an I-9 inspection.

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What Is a Form I-9?

A Form I-9 is the Employment Eligibility Verification Form I-9 established under the 1986 Immigration Reform and Control Act (IRCA). This act requires employers to verify that any employee they hire is eligible and has the appropriate identification for work. These forms must be retained by employers throughout the employment period and for a year following termination.

The form requires basic contact and identification details, such as name, date of birth, and current address. It also requests the employee's social security number or suitable alternative. Employees must provide documents that establish their (i) identity and (ii) employment authorization. The end of each Form I-9 details which documents may be used, such as a U.S. Passport (which satisfies both requirements) or a driver's license and Social Security Account Number card (which satisfy the first and second requirements, respectively). Employers must also verify that these documents were provided. All employees are required to have a Form I-9, regardless of citizenship.

What Is a Notice of Inspection

ICE or other regulatory bodies may require your business to undergo an audit or inspection. This process begins with a Notice of Inspection (NOI) or a notice from the regulatory body that they will investigate your business's recordkeeping. When your business receives a Notice of Inspection, you have three days to respond to the notice. By the time that period has elapsed, you must make available the following documentation:

  • Forms I-9s
  • Copies of payroll
  • Lists of employees
  • Your business's articles of incorporation
  • Business licenses

While that list includes most of the documentation you may be asked for, contact the ICE agent or office who sent the Notice of Inspection. They can tell you which forms they're looking for and what formats they require. They will also inform you of what time an agent will return to get the documentation. 

One of the most crucial elements in having a timely response to a Notice of Inspection is being prepared in advance with clear records. Three days may not be enough time to gather that documentation if you have unorganized or paper-based records. 

But before you submit anything, you should go through a thorough I-9 audit.

How to Perform an I-9 Audit

Begin your I-9 audit by following these steps.

1. Find the I-9 for Each Individual in the Organization

Check that you have completed an I-9 for every active employee. Ideally, these records will be in digital form for easy access and processing. 

Employers are required to have a Form I-9 for former employees that were either hired within the last three years or terminated in the past year. 

2. Complete Forms I-9 for Any Employees Missing Their Forms

If you have hired any employees after November 6, 1986, they must fill out a Form I-9 and bring in proper documentation. Send a notice to current employees who must fulfill this requirement as soon as possible. In that communication, explain the need for the documentation and include a firm completion deadline.

3. Audit the Existing Forms and Make Any Needed Corrections

Once as many of the documents and records as possible have been collected, employers must audit the records. Ensure that:

  1. Each current employee's documentation establishing identity and authorization to work is correct
  2. Each current employee's Form I-9 was filled out properly. Employers can have individuals correct technical errors or fill out a new form.
  3. Former employees' forms are correct to the extent possible.

Once you have collected all of the documentation, you must turn it over to the ICE agent at the specified date and time. Along with the documents, include documentation about the audit process you undertook. We recommend you make copies of the records in full so you can document your compliance with the Notice of Inspection and maintain in-house copies of the employee and business documentation.

Potential Responses

Even if you comply with the requirements of an I-9 inspection to the best of your ability, the documentation you provide may not be sufficient. Some potential responses you or your business may receive after an I-9 inspection include:

  • Notice of Inspected Results: This "compliance letter" confirms that the business is in compliance with Form I-9 requirements
  • Notice of Suspected Documents: This notifies employers about suspected false documentation and their obligations. Employers and the employee may respond with additional documentation to counter the claim.
  • Notice of Discrepancies: This notice informs employers that an employee's documentation is insufficient and that more documentation should be provided.
  • Notice of Technical or Procedural Failures: This notice identifies errors and gives employers a chance to correct them.
  • Warning Notice: This notice warns employers of violations that aren't severe enough to warrant fines.
  • Notice of Intent to Fine: This notice informs employers that fines will be issued due to knowing or substantive violations.

Stay Compliant With Advice From Questco

I-9 audits and inspections are difficult under the best of circumstances. But paper-based records, unorganized recordkeeping, or decentralized files can make compliance even harder. Learn how Questco can help digitize records and handle the I-9 audit process for you.

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Topics: Business Performance

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