All employers are required to complete and store the I-9 Form for new employees in order to verify both their eligibility and identity. These requirements need to be strictly followed, as employers may not knowingly hire or continue to employ an individual not authorized to work in the U.S.
Form I-9 was introduced in 1986 as part of the Immigration Reform and Control Act (IRCA) to prevent illegal immigration, a task that has become increasingly more complicated due to recent enforcement initiatives. Every employer can be subject to U.S. Immigration and Customs Enforcement (ICE) audits of their workers’ employment eligibility, with possible civil fines and criminal penalties for organizations found to be non-compliant.
Common I-9 Mistakes
In the process of completing this seemingly simple, two-page employment eligibility verification form, many employers make I-9 mistakes leaving them exposed to fines for violations.
Therefore, they need to keep an eye on the most common errors during the I-9 verification process and ensure that forms comply with U.S. Citizenship and Immigration Services (USCIS) requirements.
1. Not completing I-9 forms on time
Not paying attention to the required time frame for completion is one of the most common I-9 mistakes that can put your organization at risk for audits and substantial fines.
The employee must complete, sign and date Section 1 of the I-9 form on or before the first day of work for pay after the job has been offered to them. After this, the employer has three business days to review original documents as proof of identity and work authorization and to complete, sign and date Section 2.
Employers may give employees the list of Form I-9 acceptable documents in advance so they can be prepared on their first day to complete the form. They can also complete the form in advance for the employees starting work, as long as the job position has been offered and accepted.
2. Backdating forms
It is of utmost importance for every employer to always ensure compliance with a three-day verification period. Trying to correct an error by backdating or changing incomplete or missing I-9 forms will only create further complications.
Employers that make false statements or attestations to satisfy the employment eligibility verification requirements may be fined, imprisoned for up to five years, or both. If an investigation reveals that an individual knowingly committed or participated in acts relating to document fraud, additional fines may be imposed. So, even though backdating the form may be tempting at times, employers need to resist this urge and only provide the current date with its attestation.
3. Requesting specific documentation as proof of identity and/or work authorization
The last page of Form I-9 lists out all acceptable types of identification that the employee may bring. However, employers may not tell or put pressure on their employees to bring specific documents from the list.
If an employee presents a document or documents that satisfy the Form I-9 requirements, the employer must accept whatever combination the employee presents as long as the items reasonably appear to be genuine and to belong to the employee.
Employers have to be careful not to violate any anti-discrimination laws which prohibit unfair documentary practices when it comes to the I-9 process.
4. Using the wrong Form I-9
It is important to bear in mind that Form I-9 is periodically updated. Once updates come out, the previous versions are no longer permitted to be used for new employees. The USCIS indicates the expiration date and whether or not the previous version can still be used in the bottom left corner of the Form I-9. Therefore, employers need to check the expiration date each time they give a new employee the Form I-9.
One way to avoid the issue is to use the form directly from the USCIS website each time you need it and make sure that you are using the most up-to-date form possible.
5. Forgetting to re-verify
If the documents used to complete Section 2 of the Form I-9 require reverification due to expiration at some point during employment, employers need to do so by completing Section 3 with updated documents before the original document expires and not after. Otherwise, I-9 records indicate that the company is employing someone who is no longer authorized to work in the U.S.
Some employees’ documentation does not require reverification. This is the case when employees present permanent work authorization for the Form I-9, such as a U.S. passport or a Permanent Resident Card. Even though these documents may have an expiration date, they provide permanent work authorization if they are unexpired at the time of initial I-9 verification.
6. Improper document retention
Another important I-9 deadline requirement refers to the retention of documents. Employers must keep the form for one year after employment ends or three years after the date of hire, whichever is later. The rule is simple but the I-9 retention obligations can create problems for many employers.
Both the form and supporting documentation must be retained for the entirety of the required period, including the copies. Not following this rule may expose an organization to additional fines in the event of an audit. An employer can be penalized for not retaining the necessary records, but the organization can be liable for forms they are not required to retain as well.
Any I-9 violations discovered during the audit are subject to fines regardless of the age or status of the form, which is why employers need to pay special attention to avoid I-9 mistakes regarding the 3-1 retention rule and follow the USCIS detailed explanation on retaining Form I-9.This detailed guide to preparing for I-9 audits will help you with proper retention of Form I-9 and ensure you remain compliant in case of an audit.
7. Not conducting internal audits
I-9 compliance involves numerous requirements for employers to follow and understand. While performing an internal I-9 audit may seem complicated and tedious, this is one of the best practices to minimize fines and risks of liability for immigration law violations.
Self-audits can help you identify and fix I-9 mistakes and omissions, eliminate records you are no longer required to keep, and ensure you are not inadvertently employing an unauthorized worker. Additionally, this is an excellent step in creating a policy within your HR department to become and stay fully compliant.
8. Not using E-Verify
E-Verify is the U.S. government program designed to prevent individuals not authorized to work in the US from getting jobs. It works by comparing information from completed Forms I-9 with records from the Social Security Administration and Department of Homeland Security and verifying the identity and employment eligibility of each new hire.
Even though using E-Verify is still optional, employers need to be aware of its benefits. E-Verify participation is the best way for employers to ensure a legal workplace. According to E-Verify statistics, 98.93% of cases are automatically confirmed as work authorized, while only 0.27% of unauthorized cases remain unresolved.
9. Not making difference between the Form I-9 and E-Verify
Even though both I-9 and E-Verify deal with employment eligibility, it is important to know that E-Verify is not an electronic equivalent of I-9. They can be used together to validate that an employee is authorized to work in the U.S. but cannot replace one another.
Here are some of the main differences between I-9 and E-Verify:
- I-9 is mandatory for all employers, while E-Verify is voluntary for most businesses, although it is required for federal contractors, and many states require E-verify for some businesses,
- I-9 does not require a social security number, but E-Verify does,
- I-9 does not require a photo on identity documents, whereas E-Verify does, and
- I-9 must be used to re-verify expired employment authorization. On the other hand, E-Verify cannot be used for re-verification.
Proper Form I-9 Completion
Completing Form I-9 properly is the most important aspect of immigration compliance. Correctly completed I-9 forms are employers’ best proof of compliance and key defense against government fines and lawsuits. However, even if all employees are legally authorized to work in the U.S., employers can still face penalties for maintaining inaccurate or incomplete I-9 forms.
Because of the high risk of fines for even minor I-9 errors, many employers turn to electronic I-9 software programs to minimize the risk of errors and maximize compliance with I-9 and E-Verify laws, rules, and regulations. Electronic I-9 software helps minimize risk with its built-in quality control mechanisms, easy access to stored I-9s, automatic notification of employment authorization expiration dates, integration with E-Verify, and data security measures.
Completing Form I-9 may seem simple, but in reality, this form presents many drawbacks for employers and, in light of recent enforcement activity, the proper completion of the form is crucial for preventing potential complications and penalties. Therefore, it is critical now more than ever that employers strictly comply with the regulations related to I-9 completion, storage, and retention and the optimum solution for this is an electronic I-9 system that ensures seamless employee onboarding, space-saving, and improved compliance with employment, non-discrimination and immigration laws.Find out how you can outsource I-9 verification, prevent I-9 mistakes and costly fines, and improve compliance by relying on an electronic I-9 solution.