Whether you represent a small business or a large corporation, the I-9 form is central to your employed human resources. You may think you have it all sorted out when it comes to this seemingly mundane federal process, but when it comes to immigration law, there are some things to consider. If you want to avoid the all-too-common mistakes that employers make with their I-9 filings, this post can help.
What Is the I-9?
The I-9 Employee Eligibility form is an essential document for every person subject to employment within the United States. All employers are required to complete the I-9 form for every new employee they hire since its creation with the 1986 Immigration Reform and Control Act. Even though it is used for every employee hired in the U.S., it was initially created by the United States Citizenship and Immigration Services. This is to ensure that no one who is not authorized to work in the U.S. is employed illegally.
While the I-9 is not required for contractors or volunteers, willfully hiring a contractor that is not authorized to work in the country will likely result in severe penalties. As we will see further on in the post, even the simplest of errors will result in fines of hundreds or even thousands of dollars. Be sure that all of your business dealings are in good faith.
Though this is one of the most popular documents, employers and employees tend to make similar mistakes which cause delays or even substantial fines.
I-9 Documentation Mistakes
Here are some of the mistakes that we see both with employers that employ immigrants and those that don’t.
- Employers do not enter the approved documentation on the I-9 form.
- Employers fail to sign the Certification
- Employers fail to enter the specific document number, expiration date, issuer, or title on the I-9 form.
- Employers do not enter the initial date of employment
- Employers do not enter the name, address, or title of the business
- If the employer is not using E-Verify, he/she is not obligated to enter the Social Security numbers in Section 1. If the employer is utilizing E-Verify, a Social Security number is required.
- Employers fails to submit Section 2 after the third business day of initial employment.
- Employers incorrectly submit Section 3 after the employee has had his/her work authorization expire. To prevent this issue, request documented evidence with the listed expiration date.
Keep in mind that there is a fee attached to the mistakes that are found during an I-9 audit, so it is often best to have an employee who is dedicated to maintaining these records to avoid being penalized.
Also, there are mistakes that are made on the side of the employees. To avoid trouble with the federal government, you should keep these pitfalls in mind.
- Employees inaccurately enter their name, date of birth, or address.
- When employees select “Lawful Permanent Resident” they do not enter the USCIS number which should immediately follow.
- The Form I-94 section is not entered correctly. The USCIS number is typically not entered.
- Employees fail to sign the attestation
- Employees do not enter the initial day of employment
- Employees fail to indicate residency status
- If the I-9 form is assisted by a translator, the employee fails to have the translator sign, print his/her name, and date the form.
Other Common I-9 Mistakes:
Employers and Employees also make mistakes relating to completion and general organization. Those these mistakes may seem little, employers must take all precautions to avoid delays and fines.
- Tardiness of completion
- Failure to sign and date documentation
- Inaccurately entering employee residency status
- Failure to complete both sides of application
- Missing sheets
- White Out: using White-Out is not permitted anywhere on the I-9 form. If the applicant needs to make a correction, cleanly put a line over the mistake and put your initials next to the information. Then place the correct information.
- Employers use the incorrect version of the I-9 form.
- Failure to comply with the photocopying policy. The employer cannot decide to only make copies of some employee’s verification documentation. If the employer wishes to keep copies, he/she must make copies for all the employees.
The I-9 and Panda Express
In the summer of 2017, the largest restaurant franchise of Chinese fast food, Panda Express, was audited by the Immigration and Customs Enforcement (ICE). They found that the company had indeed required all employees to fill out an I-9 for each employee. However, the I-9 needs to be updated, and Panda Express had required all of its employees who were legal permanent residents to renew their I-9s while the U.S. citizens were not required to do so.
ICE found this to be discriminatory against green card holders and penalized the franchise with a $400,000 fine.
To a company as large as Panda Express, $400,000 is merely a drop in the bucket. However, it could easily mean the end of a startup or small business. Making sure that your business would pass an I-9 audit is essential to protecting your livelihood and your investment.
How ICE Is Changing the I-9
This incident with Panda Express is not isolated. ICE is rapidly increasing its available workforce as well as the number of audits it runs each year. Also, the fines that come along with I-9 mistakes are increasing significantly as well. Keep in mind that Panda Express didn’t just receive a single $400,000 fine. Instead, it is the cumulative cost of a carefully-itemized list of I-9 errors.
Each type of error can incur a different fine, and each is dealt with on an error-by-error basis. However, the range is now between $216 and $2,156, and that is for each mistake, not for each form. One form that is poorly filed can accumulate thousands of dollars of fines just for missing information. So for large companies with dozens or hundreds of employees, a consistent I-9 mistake can cost tens or even hundreds of thousands of dollars. Failing to file an I-9 altogether can accumulate even more fines. For a small business owner, this is unacceptable.
Also, there used to be a distinction between what are known as “technical” violations and “substantive” violations. This distinction no longer exists and cannot be appealed, as demonstrated by Buffalo Transportation when they attempted to appeal a $109,000 fine by claiming that the violations were technical rather than substantive.
You should also be aware that ICE has created an electronic I-9 version that was put into mandatory use in the fall of 2017. You must be sure to switch to this new system to avoid incurring fines.
Some Last Tips
Here are some of the errors that are usually caught during an I-9 audit. Firstly, section 1 of the form must be completed after the employee accepts the job offer and before the end of that employee’s first day in your service. Section 2 needs to be completed before the end of the first three days of employment. This section should be accompanied by copies of the original legal identification documents provided by the employee.
Keep all of this information together and well-organized in an easy-to-access place so that you can be as prepared as possible for an ICE audit. Additionally, you should regularly run internal audits to find any mistakes or errors in your I-9 forms. Remember, you must keep all I-9 forms for at least three years from the date that the employee was hired. If the employment is terminated before that time, then you must keep the I-9 for at least one year after the termination.
The USCIS gives the following list as best practices concerning your I-9. Make sure that:
- All information is clear and legible
- Your payroll records match the section 2 employee start date
- No inappropriate marks, tears, or holes impede the document’s legibility
- Copies of all forms and documents are able to be easily read
- Any abbreviations or acronyms are explained or otherwise understood
- All information that applies to the situation is complete
- You are using the most recent iteration of the I-9 form
- You have a version of the I-9 that is in English (except for Puerto Rico)
- You are not discriminating against any employee in this regard
Fixing I-9 Mistakes
If you run an internal I-9 audit and find an error on a form, there is a specific process to correcting the mistake:
- Cross out the erroneous information by creating a line through it
- Write in the right information
- Sign the correction with your initials and the date
If there are many errors on a form or if an entire section has not been completed, fill out a new I-9 and attach it to the original. Under no circumstances are you to discard the original form. You should also notate the reason for the changes you made. Be sure to be up front with the changes you make, don’t try to hide them, as that may raise suspicion.