For such a short form, the I-9 can cause some real headaches for employers. In fact, it takes a 70-page handbook to explain how to fill out just two pages! A mistake like forgetting to sign one of the sections or missing a deadline might seem like a minor detail, but it can cause a lot of problems and cost you a lot of money.
Every single detail matters if an Immigration and Customs Enforcement (ICE) agent shows up at your door asking to see your records.
ICE audits of Form I-9s have increased exponentially over the last ten years and are expected to continue to rise (PDF). Understanding these audits can go a long way to protecting your business from some serious fines.
A Quick I-9 Primer
In 1986 Congress passed the Immigration Reform and Control Act (IRCA). The law prohibits employers from hiring anyone who is not legally authorized to work in this country. Employers fill out the Form I-9 to prove they have confirmed that their workers are eligible to work. Under the IRCA, employers must not only fill out Form I-9s for every hire, but they must keep them in their records in case the government asks to see them.
The forms themselves are not very complicated. They only have two sections, and up until recently, many employers haven't paid them much attention until being forced to by an audit.
What is an I-9 Audit or an ICE audit?
The first step in an audit is delivery of a “Notice of Inspection” to the employer. After delivery, the employer has as little as three days to produce Form I-9s for all their employees. Additional paperwork, such as a copy of the payroll or a list of current employees, might also be requested.
Once all of the documents have been turned over, ICE reviews them and notes any discrepancies. If simple technical errors are found, like missing dates or signatures, the employer has ten days to make the corrections.
Bigger discrepancies, called substantive violations, are more difficult to fix. These are things like relying on unacceptable documents for employment verification. They are essentially things that would make hiring an unauthorized worker more likely.
Fines for I-9 Violations
Unless you are a very small company, fines can add up quickly. Generally fines range from $110 to $1,100 for every substantive violation. The range is the same for every technical violation that is not corrected within the ten day period. Additional fines can be assessed if ICE can prove you knowingly hired or continued to employ unauthorized workers.
Most Common I-9 Errors
Officially called Employment Eligibility Verification, the Form I-9 has changed a lot over time. In fact, a new version of the form was unveiled in July 2017. Even the slightest changes in the document can lead to errors.
The list of possible mistakes is long. Here are just a few:
- Employee leaves out required information (maiden name, address, date of birth)
- Form is not filled out according to the time requirements
- Employee does not sign one of the sections
- Employee fails to check the box indicating their citizenship status, or they check multiple boxes
- Employer does not enter an acceptable verification document
- Employer fails to enter the date of hire
The Slideshare below will show you more common mistakes:
How to Correct an I-9
Only the employee can correct mistakes in Section 1, but a company representative can edit Section 2 if they are able to confirm the information. When correcting an I-9:
- Always use a different color ink
- Initial and date next to all changes
- If info is correct but in the wrong place, draw an arrow to the right place, initial and date
- You can attach a memo to explain the reason for the correction
- If you don’t know how to fix it, you can fill out a new I-9
- If you are missing an I-9 for an employee, fill one out and put the current date- do not backdate
How to Protect Your Company from an I-9 Audit
Probably the best ways to protect your company from an audit is to do regular self-audits of your Form I-9s or to use a third party to manage and maintain your forms electronically. Internal self-audits can find mistakes, but how you correct them can be as important as finding them.
Here is a step-by-step process for conducting an internal audit:
- Separate I-9s from employee personnel files.
- Verify all I-9s are accounted for by cross-referencing a list of current employees and recent terminations.
- Gather a list of current employees hired after November 1986.
- Add to the list any employees terminated in the last 3 years.
- Ensure employees who check the box in Section 1 are clearly identified.
- Checking the box in section 1 means the employee only possess temporary employment authorization.
- If you choose to correct the existing Form I-9, line out the incorrect portions, enter the correct information, and initial and date the correction.
- If you do a new Form I-9, retain the old form. You should also attach a short memo to both the new and old Forms I-9 stating the reason for your action.
- Immediately provide the employee with a Form I-9.
- Allow employee 3 business days to provide acceptable documents.
- DO NOT backdate the Form I-9.
- Do they know who to contact from human resources and legal?
- Is there a contact point from outside counsel?
- Is there a predetermined location in the office to keep ICE agents so won't interact with customers and employees?
Maintaining Form I-9s with EBI
Partnering with a third party vendor like EBI take a lot of the work out of maintaining Form I-9s. EBI’s Form I-9 Solution makes the form an automated part of the on-boarding process. Error messages will pop up as the form is being filled out, which means common errors are completely avoided. The system also stores the forms electronically so they can be produced with just the push of a button should an audit take place.