I-9 Audits

    What is Form I-9?

    Form I-9[1] is the federal government form employers must have new employees complete within 3 days of hire.  It shows that an employee can legally work in the United States.

    The I-9 form contains lists of documents that employees can use to verify their work authorization and identity.[2]  Employees have the right to choose which documents from those lists to use.  An employer may not require an employee to present any particular document.  For example, although an employee may choose to present a Social Security card, the employer may not require the employee to do so.[3]  Employers must accept documents that appear genuine.[4]

    [1]See the Form I-9 here https://www.uscis.gov/system/files_force/files/form/i-9-paper-version.pdf

    [2] See the list of acceptable documents here: https://www.uscis.gov/i-9-central/acceptable-documents/list-documents/form-i-9-acceptable-documents

    [3] 8 U.S.C. § 1324b(a)(6).

    [4] 8 C.F.R. § 274a.2(b)(B)(ii)(A).

    What is an immigration I-9 audit?

    An immigration I-9 audit is when federal immigration officials review, or “audit,” an employer’s I-9 forms to make sure they are accurate, and that all its employees have work authorization.  The audit may be conducted by either Immigration and Customs Enforcement (“ICE”) or Homeland Security Investigations (“HSI”), a division within ICE.

    Immigration officials do not need a warrant to conduct an I-9 audit.  Instead, immigration officials issue employers a document called a Notice of Inspection at least three days before the audit.  Immigration officials may either ask the employer to send them its records, or come to the workplace to review them.

    What are the risks to me of an immigration I-9 audit?

    If, after finishing the audit, immigration officials notify an employer of problems with an employee’s I-9 form, and the employee cannot show additional documentation to show their eligibility to work, the employer may risk fines and/or sanctions by continuing to employ the employee.[1] .

    If immigration officials visit the workplace at the beginning or during the audit, they might try to speak with, and possibly arrest, workers they encounter during that visit.

    After an audit, immigration officials will have identified employees in the workplace who they believe lack work authorization, and will have the information included on the I-9, such as home addresses.  Immigration officials could use this information to return to the workplace to arrest workers or to go to the home address at a later date, although this is not common.[2]

    It is important to remember that you have a right to remain silent, to not sign any documents, and to speak with an attorney before answering any questions from immigration officials.

    [1] 8 U.S.C. § 1324a(a)(1).

    [2] https://rapidresponse.sfbar.org/wp-content/uploads/2018/04/I-9_Audit_Know_Your_Rights_English.pdf

    What are my rights before an Immigration I-9 audit?

    Under California state law, employers must give written notice to employee(s) of the upcoming audit within 72 hours after it receives the Notice of Inspection.  That notice must be in the language(s) the employer normally uses with the employee(s).[1]  Written notice must also be given to each employee’s union representative, if any.[2]

    This written notice must include: (1) the name of the immigration agency conducting the audit, (2) the date the employer received the Notice of Inspection, (3) what documents will be inspected, and (4) a copy of the Notice of Inspection.[3]  If no notice is posted, an employee may ask their employer to post one.  Employees may also request a copy of the Notice of Inspection from their employer.[4]

    The California Labor Commissioner has created a posting in English, Spanish, Tagalog, Chinese, Vietnamese, and Korean about employees’ rights relating to immigration audits.

    [1] Cal Lab Code § 90.2(a)(1).

    [2] Id.

    [3] Cal Lab Code § 90.2(a)(1)(A)-(D).

    [4] Cal Lab Code § 90.2(a)(3).

    What are my rights during an immigration I-9 audit?

    Immigration officials may not always follow the law, and may try to speak with and arrest workers even when the law says they cannot.  Employees should remember, however, that they have the right to (1) remain silent, (2) refuse to sign documents, and (3) speak to an attorney before answering any questions.  Also, immigration officials may NOT enter private or employee-only areas without a judicial warrant or the employer’s permission.[1] If their true purpose in visiting the workplace is to question, arrest or detain workers, instead of to audit the employer’s records, any arrests they make may be illegal.[2]

    [1] See https://www.nilc.org/wp-content/uploads/2017/07/EmployerGuide-NELP-NILC-2017-07.pdf.

    [2] See Perez Cruz v. Barr, 926 F.3d 1128 (9th Cir. 2019) (holding that immigration officials may not use a judicial search warrant to obtain an employer’s records, when there was no evidence that those records were even seized, as a pretense to question, arrest, and detain workers).

    What are my rights after an immigration I-9 audit?

    After immigration officials finish an audit, they will inform the employer in writing if they believe any employees lack work authorization, or if they were unable to confirm whether certain employees have work authorization. They will also notify employers of any technical errors in their I-9 forms, such as not updating an employee’s new last name after marriage.

    Employers and immigration officials must allow the employee an opportunity to correct any of these errors in their I-9 documents. In California, once an employer has received the results of the audit, it must notify in writing any employee (and that employee’s union representative, if any) who has been identified by immigration officials as not having or possibly not having work authorization.  The employer must do so within 72 hours of receiving the audit results.[1]

    The written notice must state: (1) the problems in the employer records identified by immigration, (2) how much time will be given to the employee to fix those problems, (3) the time and date of any meeting with the employer and immigration officials to make corrections, and (4) that the employee has the right to have an attorney or other third party (e.g., another worker or a union representative) present during any meeting scheduled with the employer.[2]

     

    If your employer provides you this type of notice, it is important to remember that:

    • An employer may not specify which documents an employee must present to correct the Form I-9.[3] Instead, the employee chooses which documents to present.
    • Employees have the right to not discuss their immigration status with their employers.[4]
    • An employee may decide to provide additional documentation to show their authorization to work in the U.S. However, false documentation should never be presented.
    • If, after being given an opportunity to provide additional information, an employee cannot correct the problems identified by immigration officials, the employer may risk fines and/or sanctions by continuing to employ the employee.[5]

    [1] Cal Lab Code § 90.2(b)(1).

    [2] Cal Lab Code § 90.2(b)(1)(A)-(D).

    [3] 8 U.S.C. § 1324b(a)(6).

    [4] https://www.nilc.org/wp-content/uploads/2015/11/I-9-audits-primer-2009-07-23.pdf

    [5] 8 U.S.C. § 1324a(a)(1)-(2).

    Immigration requested a meeting with me and my employer to discuss problems with my I-9 form. What are my rights?

    Employees who are undocumented or who are non-U.S. citizens who have criminal records should consider the risks of meeting with immigration officials, such as the risk of being arrested. These employees should consult with an immigration attorney before doing so. They also should consider the risks of attending the meeting based on any other relevant personal circumstances.

    In any meeting with an employer and/or immigration officials, all employees, regardless of immigration status, have the right to remain silent, to not sign any documents and to not answer any questions without consulting an attorney.  All employees in California also have the right to have an attorney or other third party (such as a coworker or a union representative) present during any meeting scheduled with the employer.[1]

    Employees have the right to not discuss their immigration status with their employers. If an employer knows or should know that employees are not authorized to work, they may risk civil or criminal penalties by continuing to employ them.[2]

    [1] Cal. Lab. Code § 90.2(b)(1)(A)-(D).

    [2] 8 U.S.C. § 1324a(a)(1)-(2).

    How are my employment and labor rights affected by an immigration audit?

    With a few exceptions, all workers have the same labor and employment protections regardless of their immigration status.  An employer may not use an I-9 audit as an excuse to discriminate against, retaliate against or intimidate employees.  Employers also may not terminate an employee identified in an I-9 audit unless the employee has been given reasonable time to correct any problems and still cannot demonstrate legal work authorization.   Even if the termination is legal, employers must pay the employee for all hours worked.

    How can I be sure an immigration I-9 audit is actually taking place?

    An immigration I-9 audit is only one of the reasons an employer may ask current employees for work authorization documents.  If an employer asks you to prove your work authorization, you can ask why they are requesting that information.  Even though it is illegal, employers sometimes do so as a way to intimidate, retaliate or discriminate against employees.  See our fact sheet for more information on other reasons an employer might ask current employees for work authorization information.