Internal I-9 audits should result in documented changes in practices, not just corrections to the forms, according to Mira Mdivani, an immigration attorney in Overland Park, Kan. In fact, she cited 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. She said employers should provide training so the same mistakes aren’t made again and noted that immigration compliance policies and procedures should be updated after corrections are made.
She listed the other top I-9 mistakes as:
- 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.
Greg Berk, an attorney with Sheppard Mullin in Orange County, Calif., said employers should double-check that they and their employees have filled out every field on the I-9. “The form is inherently confusing, and one should not assume that all fields were completed,” he remarked.
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, he said.
Employers should not accept a restricted Social Security card that says, “Not Valid Without DHS [Department of Homeland Security] Work Authorization,” Berk cautioned.
The employer 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, he said.
“The employer must reverify that the foreign national is authorized to work beyond the original expiration date by examining new work authorization documents,” said Kevin Lashus, an attorney with FisherBroyles in Austin, Texas. “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,” Berk said. 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, according to Berk. Until then, “the manual I-9 process will continue to be an exercise of imperfection and confusion,” he stated.
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,” Berk said. “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 Lashus sees 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,” he said.
“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,” said Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, Fla. “This cannot be corrected, but there is a five-year statute of limitations after which it can no longer be used against the employer.”
She noted that 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,” she said.
Record Retention Errors
Borovska added, “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, she noted, in which case the I-9 forms would be treated as missing.
She explained that “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.”
Borovska added that 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.
Employers are encouraged to obtain additional guidance for complicated I-9 situations.