One of the things that we are constantly telling our clients about has to do with conducting internal I-9 audits. We encourage them to not only correct any forms that need correcting, but also to change their documentation practices.
We tell them that not understanding the difference between correcting I-9s and correcting practices leading to I-9 violations as one of the top 10 mistakes employers make in handling I-9 forms. One of the services we offer to employers is providing training so the same mistakes aren’t made again and note that immigration compliance policies and procedures should be updated after corrections are made.
Some of the other top I-9 mistakes we see employers make are:
- Allowing untrained staff to administer I-9s.
- Not conducting an internal I-9 audit.
- Having untrained staff engage in the I-9 audit.
- Not supervising new employees filling out Section 1.
- Accepting unacceptable documents.
- Accepting fraudulent documents, such as fake lawful permanent resident or Social Security cards.
- Not recording the document title, issuing authority and expiration date or not recording this information correctly.
- Not making copies of I-9s.
- Making corrections without initialing and dating them.
We tell employers that they should double-check that they and their employees have filled out every field on the I-9.
Other common mistakes include employees not signing and dating Section 1, employers not listing the date of hire in Section 2 in the certification clause, and employers not signing or dating Section 2.
Employers should not accept a restricted Social Security card that says, “Not Valid Without DHS [Department of Homeland Security] Work Authorization.”
Employers should record the I-9 expiration date for employees working on a work permit (an employment authorization document) or a work visa, but it should not keep I-9s in employees’ HR files.
Employers must reverify that the foreign national is authorized to work beyond the original expiration date by examining new work authorization documents. We have found that many organizations do not have a method to track the expiration dates, and therefore fail to reverify.
Regardless of any changes to the form, the fact remains that the I-9 form and process will always be confusing for many employers. The hope is that someday, the I-9 form will be replaced by mandatory E-Verify for all employers across the U.S. along with a smart Social Security card that can be swiped like a credit card. The employer would then see a green light or red light, and the enhanced system would determine work authorization and duration. However, Congress will have to legislate that change. Until then, the manual I-9 process will continue to be an exercise of imperfection and confusion.
Some situations can be complicated, including which foreign nationals have automatic extensions of their employment authorization document work permits and which do not. If an employer gets it wrong, the applicant or employee may call the U.S. Department of Justice [DOJ] Immigrant and Employee Rights unit and lodge a complaint. The DOJ will then send the employer an informal discovery request about their I-9 practices and request thousands of pages of documents from the company. This risk is actually a lot higher than the chances of an ICE audit and fine.
The most common mistakes we see are timing errors.
The most frequent mistake isn’t related to writing information down improperly—although that happens all the time—but is related to the timing of the Form I-9. Section 1 must be completed before close of business (COB) the first day of employ. Section 2 must be completed before the COB the third day after the first day of employ—for example, if the employee is hired on Monday, Section 2 must be completed before COB Thursday.
Note that this is business days as it relates to the employer, so if the employer is operational over the weekend, the weekend will be counted as business days. This cannot be corrected, but there is a five-year statute of limitations after which it can no longer be used against the employer.
When a new hire will be working remotely and resides far away from the company’s locations, the employer may authorize a local individual it trusts to complete the I-9 verification process. That individual becomes the employer’s agent for I-9 verification purposes; the person might be, for example, a bank representative, notary or lawyer.
One mistake that some employers will make in this situation is to have the agent physically examine the documents but not complete Section 2. Sometimes, the employer will have the agent complete a separate form or document, but the employer will complete Section 2 attesting to having examined the I-9 documents. This is incorrect. The individual who physically examined the documents must be the one signing the attestation under penalty of perjury in Section 2.
Record Retention Errors
The requirements for electronic retention are very rigorous and include measures such as reasonable controls, inspection, quality assurance, audit trails, indexing [and] ability to reproduce.
Purging forms too early sometimes occurs, in which case the I-9 forms would be treated as missing.
The rule is that only terminated employees’ I-9s can be purged three years after hire or one year after termination, whichever is later. Sometimes employers will mistakenly purge forms for active employees, which is inappropriate.
Failure to retain the original form, unless electronically stored and compliant with those requirements, is also a serious error and would be treated either as a failure to produce a Form I-9 or a missing form.
We always encourage employers to have an outside agency, like ours, complete an independent audit of their I-9 documents and processes to ensure that they are doing everything they can to be compliant with these difficult to understand laws.