U.S. employers are required by law to verify the identity and employment authorization of individuals they hire using Form I-9, Employment Eligibility Verification. While employers may understand the basics of I-9 compliance, fewer are prepared for what to do when faced with an official audit by U.S. Immigration and Customs Enforcement (ICE) or another government agency. Here’s what you need to know if your organization is ever subject to an I-9 audit.

Understanding the I-9 Audit Process – An Overview

ICE initiates the audit process by issuing a Notice of Inspection (NOI), which gives employers three business days to provide I-9 forms for all employees. The purpose of the inspection is to identify any violations that may result in administrative penalties or, in more serious cases, criminal charges against the employer. The NOI typically requires employers to submit I-9 forms for both current and former employees, along with payroll records from the past three years, a list of current employees, and other corporate documents such as Articles of Incorporation and business licenses.

Substantive violations are finable offenses. Further, if technical violations are identified, ICE issues a “Notice of Technical or Procedural Failures,” highlighting the errors on the I-9 forms. Employers are then typically given 10 business days to correct the technical violations. If employers fail to correct the technical violations they will be upgraded to substantive violations and subject to applicable fines.

When violations warrant penalties, ICE serves a Notice of Intent to Fine (NIF) along with charging documents outlining the violations and associated fines for substantive violations and any uncorrected technical violations. Additional penalties are imposed if the employer is found to have knowingly hired or continued to employ unauthorized workers.

What to Do During an I-9 Audit

1. Contact Legal Counsel Immediately
   Upon receiving an NOI, employers should immediately consult with an experienced immigration attorney. A legal team can help ensure a timely and organized response, minimize potential liability, manage communications with the auditing agency, and assist with negotiating fineable offenses and representing the company before the Office of the Chief Administrative Hearing Officer (OCAHO), if necessary.
2. Gather and Review All I-9 Forms
   Collect all documents requested in the NOI, which typically includes all forms I-9 for active employees and for terminated employees whose forms must still be retained (typically, for one year after termination or three years after the date of hire, whichever is later). Before submitting the I-9 forms, conduct an internal review to identify and correct any errors, to the extent permissible. Be sure to seek the advice of an experienced attorney before doing so to ensure it is being completed correctly – mistakes at this stage could further complicate the situation.
3. Prepare a Document Submission Plan
   Make sure that the documentation you submit is well-organized and labeled clearly. Include a cover letter summarizing what is being provided, and keep a complete copy of all materials submitted to the auditing agency.
4. Do NOT Back-date or Fabricate Forms
   If a Form I-9 is missing or substantive errors are discovered, do not backdate or alter it to make it appear compliant. Instead, where permissible, prepare a new Form I-9 and attach a memo explaining the circumstances and the corrective actions taken. This guidance is not exhaustive, and employers should consult with an attorney to ensure corrections are handled properly and in compliance with applicable regulations.
5. Understand Your Obligation
   Be courteous and cooperative with government auditors, but avoid volunteering additional information beyond what is required. For example, ICE will provide three days notice to produce any requested documents. You should always invoke this three-day period and never waive it. Let your legal counsel handle direct communications whenever possible.
6. Respond to Notice of Technical or Procedural Failures
   After ICE reviews your I-9 forms, they may issue a Notice of Technical or Procedural Failures. If ICE identifies technical violations, the employer typically has 10 business days to make corrections. It is essential for employers to promptly correct the errors as requested and provide the corrected documents to the agency in accordance with their directions. If technical errors are not corrected within this timeframe, they will be considered substantive violations and may lead to fines.
7. Address Any Substantive Violations
   In some cases, the audit may uncover more serious issues such as missing forms, unauthorized workers, or pattern violations. Employers should take these findings seriously and develop a remediation plan with guidance from legal counsel.
8. Negotiate a Settlement or Request a Hearing: If fineable violations are identified during the audit and a Notice of Intent to Fine (NIF) is issued, employers may have the option to negotiate a settlement to resolve the matter without proceeding to formal litigation. A legal representative can engage with ICE to reduce or eliminate certain fines, particularly if good-faith efforts at compliance can be demonstrated. Alternatively, if a resolution cannot be reached or if the employer disputes the alleged violations, the employer has the right to request a hearing before the Office of the Chief Administrative Hearing Officer (OCAHO). It’s critical to work closely with experienced attorney during this stage to assess your options and protect your interests.

Best Practices for Preventing Problems Before an Audit

• Conduct Regular Internal I-9 Audits: Periodic self-audits help identify and correct errors before an official audit occurs. Internal audits should be completed closely with an attorney in order to avoid making certain situations worse. Internal audits will help employers minimize exposure in the event of an ICE investigation.  
• Establish a Standard Written I-9 Compliance Policy: This will help maintain control over the hiring process throughout the company in order to avoid impermissible conduct. The overall company policy should demonstrate the employer’s good faith and help mitigate any penalties. Further, a uniform policy will make the employer less susceptible to charges of discrimination.
• Train HR and Hiring Staff: Clear guidance must be put in place for all HR representatives or hiring managers with authority to complete form I-9. For instance, those with authority should know when I-9 verification must be completed, how to conduct the actual verification process, how to use the company’s I-9 electronic system if there is one, how to store I-9 forms, and when to discard of I-9 forms for terminated employees. They should also understand when a company can and cannot use the remote verification process.
• Use E-Verify Where Appropriate: While not mandatory for all employers, E-Verify can provide additional compliance assurance.
• Maintain a Clear Retention Policy: Keep only the required I-9 forms for the legally mandated period, and securely dispose of forms no longer needed.

An I-9 audit can be disruptive, but it can be effectively managed. By acting quickly, seeking appropriate legal guidance, and maintaining solid compliance practices, employers can minimize risk and protect their business.

With customized strategies, Reddy Neumann Brown PC ensures employers can confidently address I-9 compliance challenges. If you have any questions, please schedule a consultation.

By: Krystal Alanis

Krystal Alanis is a Partner at Reddy Neumann Brown PC and manages the firm’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment-based green card matters. Krystal guides clients from a variety of industries through the maze of the PERM Labor certification process and has handled thousands of PERM applications throughout her career with Reddy Neumann Brown PC. Krystal also guides employers and individuals through the I-140 and Adjustment of Status process, and assists clients with temporary work visa petitions (e.g., H-1B, TN, L-1, E-2). With over 13 years of immigration experience, Krystal is able to advise her clients with confidence and recognize any potential pitfalls that may arise.