Completing and storing the I-9 Form for all new employees is one of the responsibilities each employer has to take seriously. As the newly increased fines range from $252 to $2,507 per employee for the first offense, preventing Form I-9 mistakes, omissions, and non-compliance in any aspect is truly imperative for any responsible employer.
Back in 1986, the United States Citizenship and Immigration Services introduced Form I-9 through the Immigration Reform and Control Act (IRCA) to prevent illegal immigration, by mandating the form for each new hire as a tool to confirm both their identity and screen their eligibility to work for the US employers. Four decades later, it remains one of the most important federal documents employers have the obligation to properly complete and maintain in their records.
Form I-9 Mistakes to Watch Out For
This two-page form only appears simple, as there are more than a few commonly encountered mistakes in the process of its completion, so employers need to watch out for these possible pitfalls that may leave them vulnerable to serious fines and violations if faced with an ICE audit.
We have compiled a list of findings no employer wants on their audit report, but which can be seen more often than others:
1. The form is not completed on time
This is one of the most frequent Form I-9 mistakes. Sounds benign, but it may nonetheless put the organization at risk of non-compliance and lead to heavy fines.
The deadlines are strict and non-negotiable:
- No later than the first day of employment, the employee needs to complete, date, and sign Section 1 of the form.
- There is a three business days deadline from the first day of employment for the employer to inspect the documents submitted by the employee, and upon it to complete, date, and sign Section 2 of the form.
It is helpful to provide the list of Form I-9 acceptable documents in advance so that employees can be ready for the form completion on time. It is also possible to allow the completion before the first day at work, but only after the employee has accepted the job offer.
2. The form is backdated
Sticking to the three-day verification deadline is crucial. In case a deadline ends up not being met, it could be tempting to backdate, correct a form or add missing data, but that could not be further from a good idea. Not only could it lead to further complications, but it may severely backfire and employers could face fines, even imprisonment for up to five years for making false statements or attestations. Additional fines may be imposed if the investigation finds that the employer knowingly participated in acts related to document fraud.
3. The employer requested the employee to submit specific documentation
Any document listed on Form I-9 A, B or C lists can be used for I-9 verification. Therefore, the employee has a choice, and it is not advised for an employer to try to limit or influence that choice in any way. As long as the document is listed, it meets the requirements and the employer must accept it as either a single A list document, or a combination of documents from B and C lists.
Employers not observing this rule may face charges of discrimination, both by authorities and the employee in question.
4. The outdated Form I-9 is used
One needs to be aware that Form I-9 undergoes periodical updates. As soon as the new update is out, it is no longer permitted to continue to use the previous version for new hires. The bottom left corner of the form indicates its expiration date, along with the information on whether or not the old version of the document may still be used.
To avoid this Form I-9 mistake, make sure to check the expiration date, or use the form directly downloaded from the USCIS website.
5. Re-verification has not been completed
For completion of Section 2, some of the documents the employee may choose to present for inspection have expiration dates. Therefore, Form I-9 will need to be re-verified if the document initially used expires at any point during employment.
The process of re-verification with updated documents needs to be completed using Section 3 of the form before the expiration of the original one. By doing so, the employer avoids the danger of being faulted for employing a person without valid work authorization. To ensure the document i.e. work authorization validity at all times, it is good practice to remind the employee of the upcoming document expiration, at least 90 days before the deadline.
Employers should not reverify:
- U.S. citizens and noncitizen nationals
- Lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration Receipt card for Section 2. This includes conditional residents.
- List B documents
6. Document retention period has not been observed
Completed I-9 Forms must be kept three years after the date of hire, or one year after the date employment ends, whichever is later. This is another important deadline to observe, and another cause of Form I-9 mistakes, as employers might get rid of I-9s as soon as the employment is over, and get themselves into trouble.
Along with I-9, it is necessary to store and keep all the supporting documents and their copies. Not complying with this requirement leads to penalties, regardless of the age or status of the form, which is why employers need to pay special attention to avoid Form I-9 mistakes and follow the 3-1 retention rule and other detailed USCIS guidelines on how to ensure proper Form I-9 retention.
7. Internal audits have not been conducted
Dealing with Form I-9 leaves numerous possibilities for errors. Internal audits are a reliable method to mitigate them and fix whatever mistakes have been unwittingly made. To set up regular self-audits and include them in the company policy, a company needs to provide permanent and accurate training for all HR department staff involved in the process.
This does seem complicated and tedious, but it is one of the best practices suggested to ensure compliance and eliminate potentially severe penalties for I-9 violations.
8. Employer fails to use E-Verify
One of the online tools provided to prevent unauthorized employment in the country is E-Verify. It compares the data entered into Form I-9 with the records from the Social Security Administration and Department of Homeland Security, thus assuring work eligibility.
Its use is still optional, but employers are getting increasingly aware of its advantages. E-Verify statistics indicate that 98.93% of cases are automatically confirmed as work authorized, with only 0.27% of unauthorized cases remaining unresolved.
9. Form I-9 gets mistaken for E-Verify and vice versa
E-Verify is not an electronic equivalent of I-9. If used together, both tools assure work authorization, but one cannot replace the other.
To make sure employers understand all the important differences between Form I-9 and E-Verify, check out these points:
- Completing I-9 is mandatory, but using E-Verify is not. It is important to note that E-Verify is mandatory for federal contractors, and many states impose E-verify requirements for some businesses,
- Social Security Number (SSN) is not required for I-9, but for E-Verify it is,
- A photo on ID is not required for I-9 completion, but for E-Verify it is, and
- For re-verification of work authorization, using I-9 is a must. E-Verify, however, cannot be used for re-verification.
Avoid Form I-9 Mistakes with Proper Management
Correctly completed I-9 forms are an indispensable condition of compliance, as a key step in ensuring the legality of their businesses when it comes to immigration policy. However, that is not nearly enough – if any of the other mistakes we listed are made, the effect achieved by proper completion will be in wane, as the penalties for inaccuracies, missed deadlines and re-verifications can still be too high to handle for any business.
There are no mistakes in I-9 management that will go unpunished if detected by authorities. To avoid the risk of exposing the company to fines and lawsuits, many employers decide to upgrade their operations in this field by adopting advanced I-9 software solutions. Electronic I-9 management includes control mechanisms, easy access to stored I-9s, automatic deadline notifications, integration with E-Verify, and data security measures.
Learn more about the ways to safely outsource I-9 administration, prevent Form I-9 mistakes and costly fines, and improve compliance through the use of a reliable state-of-the-art electronic I-9 system.