Mentioning “I-9“s to employers will often either elicit a blank stare or strike fear in their hearts. Why? Some employers simply are not aware of the significance of the I-9 and the dangers of either failing to complete or doing so incorrectly. Others have heard stories of audits and cross their fingers, hoping they are not audited. Whichever category you may fall into, there is a better way, starting with looking at some of the more common mistakes and how to avoid them.
What are some common Form I-9 mistakes?
- Using the wrong form: From last week’s post you know that USCIS created a new form that employers are required to use as of May 7, 2013 (Click here for a review). Using the old form is a violation. If you are audited by ICE, you are fined for each violation. Employers who use the wrong form, will be fined for each time ICE finds it to have done so. Click here to download the new form.
- Not adhering to time requirements: Employees are responsible for completing Section 1 of Form I-9 and must do so on the first day of their employment — not before and not after. (Special circumstances such as remote hires and temporary employees, will be covered in a subsequent post, so please hold on to these types of questions for now!) Employers are responsible for completing Section 2, and must do so no later than 3 days after the employee commences his or her employment. Employers who have not done so by that time are legally required by law to terminate that employee. Why? Remember in last week’s post we discussed how federal law requires employers to determine that their employees are eligible to work in the US? We now also know that the Form I-9 is the legally required way to do that. Many employers trip up here. They do not ensure completion of the I-9 within 3 days of employment and they do not terminate the employee either. This type of violation will create trouble during an audit. The solution: Make sure you complete Section 2 within 3 days of the employee’s start date!
- Not ensuring correct completion of Section 1: Employers may need to help an employee complete Section 1 correctly. For example, employees who are here on an appropriate visa, may incorrectly check that they are permanent residents. Many employees, in their excitement over their new job, or just plain nervousness, may forget that they need to sign and date the bottom of section 1. At the very least, employers should check over Section 1 to avoid these types of errors. Highlighting the areas the employee needs to fill out, including the sign and date line, may help.
- Failing to indicate having helped the employee complete Section 1: As a follow-up to the point I just made, employers who help employees correctly complete Section 1, should make sure to complete the Preparer and/or Translator Certification at the end of that Section. This is another easy way to avoid a finding of violations by ICE in the event of an audit.
- Leaving fields blank: Fill in all spaces for dates, names, and signatures. While this seems very obvious, many employers, perhaps in a hurry to move on and get the employee out there and working make this mistake, triggering fines if they are audited. The employer must provide its name and address in the appropriate spaces and date the form (if for no other reason than to ensure that the timing requirements I talked about above are adhered to). Whoever is completing the form on behalf of the employer must sign the form.
- Leaving Mistakes Uncorrected: Employers who make mistakes completing an I-9 often compound the error by filling out a new form. Why is wrong to do that? It can create the perception that the employer did not timely complete it in the first place. What then should an employer do? Correct the mistakes on the form and note on the side “per self-audit”.
- Not signing and dating Section 2: Just as employers need to ensure that employees properly complete Section 1, and pay attention to details, so must the employer ensure that it properly completes Section 2. As with Section 1, this is an easy mistake to make — and avoid. Sometimes this mistake is a result of pre-filling the rest of the information at the bottom of Section 2, in an attempt to save time (e.g. name of company, name and title of employer representative.) Employers who pre-fill any of the I-9, must make sure to sign and date Section 2. This seemingly small detail can be costly in an audit.
- Failing to record which acceptable List A or acceptable List B and C documents with title, issuing authority, numbers of expiration date on Section 2 of the form: Failure to record which documents have been used to verify the employee’s identity and work eligibility renders an employer unable to prove that it properly conducted such verification at the appropriate time. This is a serious violation that can lead to serious penalties.
- Telling the employee what documentation to produce: Employees must provide either one acceptable List A document or one acceptable List B and one List C document. Employers can (and perhaps should) show the employee the Lists and let the employee decide which of those documents s/he will provide. Employers who specify which documents the employee should provide violate the Anti-Discrimination Provisions of the Immigration Nationality Act (INA), which the US Department of Justice Civil Rights Division enforces.
- Not viewing original documents: Accepting copies, even if accurately scanned, or viewing a document online is not acceptable under current law. Employers must actually view an original, physical document. Be careful here! Some vendors will try to sell products that claim to be I-9 compliant, that enable employees to complete Section 1 online and to scan and send the documents to their employers. ICE considers this practice a failure to complete the I-9, and, here again, will impose fines for every violation, i.e. for every I-9 completed in this manner. Situations in which this becomes a particular issue will be discussed, in large part, in next week’s post.
Knowing these top 10 I-9 pitfalls helps employers know what not to do in most situations. But what about remote hires or using or place, consultants, or temporary employees? We will begin looking at some of these “special” issues next week!
Do you use staffing agencies to meet your staffing requirements? If so, click here to read my latest post about how the ADA applies to “temps” on The Staffing Stream , a blog published by Staffing Industry Analysts.
Disclaimer: Contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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