As HR Professionals, you know all too well that onboarding a new employee involves completing Form I-9 in order to verify the identity and employment authorization of all hired workers. Moreover, certain situations require employers to reverify work authorization, possibly many times throughout an employee’s career with the company. This process helps ensure that employers do not fall victim to hiring or retaining unauthorized workers.
U.S. Immigration and Customs Enforcement (ICE) I-9 audits have dramatically increased recently due to the current administration’s ongoing emphasis on employer compliance under the Buy American and Hire American Executive Order. Form I-9 violations, including simple mistakes, can expose a company to hefty civil fines and potential criminal prosecution.
To avoid I-9 violations, employers should ensure that Form I-9 is completed correctly. Reddy & Neumann provides you with this list to help your company recognize and avoid some of the most common I-9 mistakes:
Common Mistake #1 – Tardiness of Completion
You must complete Form I-9 each time you hire any person to perform labor or services in the U.S. in return for wages or other remuneration. As HR Professionals, juggling multiple tasks is the norm so it isn’t surprising that tardiness to complete Form I-9 is on our list of common mistakes. But no worries, just remember the following 2 simple rules:
- Section 1 of Form I-9 must be completed by your employee no later than the end of his/her first day of employment. The employee may complete Form I-9 earlier than the first date of employment as long as the individual has accepted the job.
- Section 2 of Form I-9 must be completed by the employer no later than 3 business days after the employee begins the first day of work for pay. For example, employee begins work Monday, you must review documents and complete Section 2 on or before Thursday. If you hire someone for less than 3 business days, Section 2 must be completed no later than the first day of employment.
Common Mistake #2 –Re-verifying Employment Authorization Late
In most cases, when an employee’s employment authorization or, employment authorization documentation expires, you must reverify their employment authorization in Section 3 of Form I-9. You cannot continue to employ an individual who cannot provide you with proof of current work authorization. Therefore, to avoid late reverification, always remember to:
- Establish a calendar notification system for employees whose employment authorization will expire and provide the employee with at least 90 days notice prior to the expiration date of the employment authorization.
- Reverify in Section 3 of Form I-9 no later than the date employment authorization expires.
Common Mistake #3 – Accepting a Restricted Social Security Card as a “List C” Document
An employee can present a Social Security Card as a “List C” document to demonstrate employment authorization (in combination with a “List B” document to demonstrate identity). Simple enough, right? Not so fast! Many employers are unaware that you can never accept a restricted social security card for proof of work authorization. To never make this mistake again, note the following:
- Only accept an unrestricted Social Security Card if presented as a “List C” document.
- A restricted social security card is easily recognizable and will include one of the following restrictions on its face: (1) Not valid for employment, (2) Valid for work only with INS authorization, or (3) Valid for work only with DHS authorization.
- If presented with a restricted social security card, you must reject the document and ask the employee to choose different documentation from List A or List C.
Common Mistake #4 – Failure to Comply with Company’s Photocopying Policy
During the I-9 verification process, employees are provided with a list of acceptable documents (List A or List B and C) to present to their employer to prove both identity and employment authorization. Some companies prefer to retain copies of the documents provided by employees. Although allowed, employers must be consistent with the company’s photocopying policy to avoid claims of discrimination. To avoid issues in the future:
- Don’t be selective. If you choose to make copies of employee documentation, you MUST do so for ALL employees.
- Create an office wide policy for photocopying employment verification documents and ensure strict compliance.
- Ensure key personnel are fully trained on all I-9 rules and on the company’s internal I-9 procedures.
Common Mistake #5 – Using White-out to Correct Errors on Form I-9
Mistakes happen; we are all human after all. But when they happen on Form I-9, one thing is for sure, using white-out is never allowed to correct the Form. Doing so can create suspicion in the event of an official ICE I-9 audit. Instead do the following:
- Always be transparent! Simply line out the incorrect portion, enter the correct information, and initial and date in the margin (employees must make corrections in Section 1, and employers in Section 2 and 3).
- Use a new Form I-9 for multiple recording errors or omissions and attach it to the original.
- Attach a note to the employee’s Form I-9 regarding the reason changes were made to an existing Form I-9 or why a new Form I-9 was completed.
What to Do to Ensure Your Company is I-9 Compliant
Employers are fully expected to follow all I-9 rules and procedures. During an I-9 audit, ICE will review I-9 records for substantive and technical errors. Any errors found on Form I-9 can generate hefty fines. However, ICE has been more lenient on employers who have taken the necessary steps to correct inadvertent mistakes and implement improved I-9 policies and procedures. Therefore, employers should seriously consider conducting a comprehensive internal audit to ensure your company is ready if ICE comes knocking at your door.
A comprehensive internal audit review may include:
- A complete review of the company’s I-9 documents;
- Correcting technical errors on Form I-9;
- Promptly investigating red flags indicating substantive errors found on Form I-9;
- An evaluation of the company’s hiring processes and procedures;
- An evaluation of HR training requirements pertaining to I-9 compliance;
- Considering use of I-9 software to help HR teams manage the progress of all Form I-9s;
- Considering enrolling in E-verify, which is the federal electronic system that allows employers to confirm employment eligibility of newly hired employees.
For more information, please contact Krystal Alanis at firstname.lastname@example.org.
By: Krystal Alanis
Krystal Alanis is the Managing Attorney of Reddy & Neumann P.C.’s PERM Labor Certification Department, where she oversees all EB-2 and EB-3 employment based green card matters. She also guides employers and individuals through the I-140 and Adjustment of Status process, assists clients with non-immigrant visa petitions (e.g. H-1B, TN, L-1, etc.), and advises her clients on I-9 compliance issues.