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Immigration Alert – Recent Trends in I-9 Compliance and Importance of Annual Audits

November 21, 2019

The Immigration and Customs Enforcement’s (ICE) pursuit of employers who violate federal immigration compliance laws is expected to be moving full speed ahead in the remainder of 2019, and possibly accelerating in 2020. As a result of both substantially increased funding for enforcement actions and an outcome of the public debate about illegal immigration, ICE will continue to audit thousands of employers.

The numbers don’t lie. In FY 2018, Homeland Security Investigations opened 6,848 worksite investigations compared to 1,691 in FY 2017; initiated 5,981 I-9 audits compared to 1,360 in FY 2017; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively, in FY 2017. All of these categories surged by 300 to 750 percent over the previous fiscal year.

ICE prioritizes investigations involving critical infrastructure and key resources. However, no industry or company, regardless of size, type or location is exempt from complying with the law and may become the subject of an ICE investigation. As such, an internal audit of I-9 compliance policies will soon become a best practice among employers.

I-9 Best Practices 

To lessen the risk of immigration compliance liability, employers should conduct periodic internal audits and adopt best practices and standard operating procedures to show good faith compliance practices. Here are some best practices:

    1. Have an internal HR executive oversee the process. A dedicated resource will be able to ensure a consistent approach to I-9 paperwork and continuous attention to strict deadlines and regulation updates. The person should be responsible for coordinating the entire work authorization process, including setting-up and enforcing internal policies and communications.
    2. Store employment verification documents in a secure location. Employment verification laws mandate strict and lengthy employee document retention. Depending on your company’s size, volume, and preference, you may keep paper files or move exclusively to online storage systems. Remember to keep only the minimum number of documents required, and store the I-9 forms and document photocopies separate from your employee files.
    3. Establish a process. According to the regulations, employers must complete Form I-9 within three business days of hire. They must also re-verify work authorization documents the day they expire. There is no grace period.
    4. Keep a reliable reminder system before employment eligibility expires. Failure to track expirations and conduct re-verifications could be used as evidence that a business knowingly violated compliance laws. ICE considers it an egregious violation when employers fail to re-verify the employment eligibility of an employee whose employment authorization has expired. This is especially relevant if you hire foreign national workers, whose work authorization documentation is typically issued for a period specified in immigration laws and needs to be extended and then re-verified for I-9 purposes. For this reason, employers should have a process in place to obtain documentation of the continued employment eligibility of the employee before the work authorization expires.
    5. Conduct regular self-audits and annual external audits. Internal audits and annual external audits help ensure verification policies are compliant with the most current regulations and forms, increase process efficiency, and build good faith. By performing regular audits, businesses can save the steep fines, brand damage and penalties—including criminal prosecution—that accompany noncompliance.


Alexandra Michailov