Internal I-9 Audits: Correcting Errors Safely and Whether a Proactive Audit Is Worth It

Attorney Answer

Follow the joint DOJ/ICE Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits (December 2015). Define a neutral scope - all forms, or a neutral sample - and never select by nationality or appearance (8 U.S.C. § 1324b). Preserve the original form. Employees correct their own Section 1; the employer corrects its own sections. Draw a single line through the error, enter the correct information, and initial and date it with the actual date; never backdate, never white out, never create a new attestation to replace a missing one. Give affected workers a reasonable, consistent chance to address problems and accept any acceptable document of their choice.

Why the form itself matters: the Ninth Circuit held that an employer that hired workers who left Section 1 incomplete 'did so at its own peril,' that keeping copies of documents is not a substitute for completing the form, and that ICE's classification of violations as substantive versus technical or procedural deserves deference (Ketchikan Drywall Services v. ICE). Only technical or procedural failures get the statutory cure period of 'not less than 10 business days' after ICE's written notice (8 U.S.C. § 1324a(b)(6)); a missing or late form is substantive and correction does not erase the violation.

Is a proactive audit worth it now? Usually yes when records, training, reverification or a prior acquisition give concrete cause, and provided you are ready to act on what you find. Involving counsel protects communications, not facts: the privilege 'only protects disclosure of communications; it does not protect disclosure of the underlying facts' (Upjohn Co. v. United States), and the I-9s themselves are inspectable records the law requires you to keep and produce (§ 1324a(b)(3)). An audit is not immunity, and it may surface authorization problems that require prompt lawful action. Base the decision on your actual record risk, not on arrest headlines.