Form I-9 Self Audits

We have been writing about Form I-9 compliance by car dealers for good reason. The controversy over federal immigration laws continues to be red hot. The aspect of immigration enforcement that can affect car dealers is their Form I-9 processes, since completion of a Form I-9 signifies proof of an employee’s eligibility for employment.

The concern that the Trump administration is going to increase the number of I-9 audits is real, and this year it dramatically increased the number of worksite audits. Because the administration sees employment in the United States as the “magnet” drawing undocumented immigrants into the United States, it will seek to shrink employment opportunities for the undocumented. That will likely mean even greater numbers of worksite enforcement actions in 2019.

How will you fare if you are the subject of an audit by Immigration and Customs Enforcement?

One way to know is to do a self audit. While the fact of doing a self audit may not protect you from penalties if problems are found in an ICE audit, the self audit may help you fix problems before they are detected by ICE.

With this in mind, ICE and the Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices has issued a joint guidance for employers conducting internal Form I-9 audits available at

The guidance clarifies that a self audit is not legally required. However, it can be valuable for an employer to detect problems ahead of an ICE audit, provided the internal audit is done in a way to avoid “discriminatory or retaliatory audits, or the perception of discriminatory or retaliatory audits.”

If an employer audits and finds a problem in Section 1 of a form, the employer should meet one-on-one with the employee involved and request that the employee correct the error. If there is an error in Section 2 or 3 of Form I-9, the employer itself can correct the form provided the correction is done in a way that makes clear there has been a correction. Do not erase or use correction fluid, but instead draw a line through the incorrect information, insert the correct information, and the revision should be initialed and dated.

If an employer discovers that the wrong Form I-9 form was used, as long as the I-9 documentation provided by the employee was correct, an employer can fix the error by stapling a new blank form to the outdated completed form and signing the new blank version noting why that version is attached. Or the employer can just write an explanation and attach it to the outdated completed form explaining the wrong form was filled out in good faith.

Here are some things to keep in mind.

  • ALWAYS make corrections so it shows they were made.
  • NEVER backdate any
  • NEVER dictate the documents the employee shall provide to verify eligibility for employment; it is the employee’s choice.
  • NEVER have all employees complete new Forms I-9 if you want to avoid an internal audit. An employer must have sufficient justification for correction of specific forms I-9, otherwise there will be discrimination concerns.
  • ALWAYS staple the new form to the previous Form I-9 if it is necessary to complete a new form.