By: Sean Hansen, HR Compliance Coordinator
Everyone, at some point in their career, has probably had to fill out a form I-9. It’s one of the many forms asking you for the exact same information you probably already put down on three other forms. As annoying as that can be, it’s one of the most important employment documents you must complete. Why is that?
Well, you want to work, don’t you?
You can look to the Immigration Reform and Control Act of 1986 (IRCA). It made verifying an employee’s eligibility to work a requirement; you cannot hire someone without doing so, and cannot continue to employ someone you know is unauthorized to work in the U.S. That’s where the Form I-9 comes in. Front and center on the form, in bold, is “Employment Eligibility Verification”. All you have to do is get your employee to fill it out
Skipping the I-9 – Not a Good Idea
Federal law puts certain responsibilities on employers for the form I-9, no matter the size of the company. They must verify everyone they hire, complete the form, and keep it for the required amount of time. Just how long should you hold on to your I-9s? You should keep them for all active employees as long as they are working. For terminated employees, it's simple. Either three years after the employee began work, or one year after they were terminated, whichever is the later date. It may be easier just to keep all form I-9s, but employers can still be fined for errors even if the form is past its retention date.
When storing employee I-9s, it is best practice to separate from other employee records. If it is electronically stored, make sure it is set up to ensure that an inspection can see all changes/modifications to the form since its creation. Regardless of storage method, you must be able to present these forms within 3 business days if requested for inspection. Employers cannot discriminate on the basis of national origin, citizenship, or immigration status. They cannot reject reasonably genuine documents, or ask for more/different documents in order to verify their eligibility (unless, of course, they do not meet the Form I-9 requirements). If an employee takes any action to contest potentially unfair documentation practices or other discrimination, an employer cannot harass or retaliate against them. Finally, an employer cannot willingly hire someone they know is unauthorized to work in the U.S.
Checking All the Boxes
Section 1 of the I-9 is employee only, which means if there is a mistake on there, they need to be the one to fix it. This can be a real issue when filling out the form electronically. A lot of people can struggle with technology, especially if the system isn’t intuitive. If there isn’t anything stopping employees from skipping boxes, often they will skip required fields. The easiest solution is to ask employees to fill out all fields, and if they come across one that doesn’t apply, they can simply put down “N/A”. If you are doing it electronically, and you have the option to make fields required, doing so can help avoid that issue.
Section 1 is more than just personal information. This is also the part where the employee attests to their work status, and its where other common issues pop up. If the employee is a lawful permanent resident or an alien authorized to work, they can’t just check the box. They have to provide additional information, and often times those boxes are overlooked. Just as easily missed is the section that asks if the employee used a preparer or translator. Even if they did not, they must check the box attesting to whether or not they did.
The ABCs of the I-9
In addition to filling out section 1, the employee is responsible for supplying identifying documents that prove their work status, and it’s up to you to verify their authenticity. That can be intimidating; there are a lot of possible documents an employee can provide, and some of them are different in every state. It can feel like you need to be a document expert, but that’s not the case. You just need to know what to look for. You can also deny documents you aren’t comfortable accepting, such as a birth certificate without a document number on it. Just make sure that, if that is your policy, you are applying it to every employee.
First off, let’s address one of the most important issues, the mistake you absolutely do not want to make. You cannot tell an employee what documents to provide. It may feel easier just to ask for a driver license and a social security card. But for the form I-9, employees can provide any IDs they want, as long as it is valid (no expired IDs!) and is on the list of acceptable documents. But what’s the harm in asking for specific documents? Well, it’s all about anti-discrimination laws. Not everyone is going to have access to some of these documents, and you can’t deny them work because of it. Another common issue is the list of acceptable documents itself. Its split into three lists: A, B, and C. The distinction between each list is far from arbitrary. In order to verify work eligibility, IDs have to accomplish two things: establish identity, and establish employment authorization. That is what is so great about list A documents; they do both. That is also the reason why a list B document must be accompanied with a list C document, and vice versa. List B documents, like a driver license, only prove you are who you say you are. Just as a list C document only proves you are eligible to work in the U.S. One of the biggest aspects of the form I-9 is that it’s time sensitive. An employee must complete it by their start date. Employers have a little more leeway; Section 2 has a three-business day window to complete. That can seem like a long time, but you would be surprised what could go wrong in three business days.
Sir, your driver license expired two weeks ago
The limited time can be especially difficult for employers with high turnover who need to hire quickly in order to function. Say you have an employee you hired that day. You gave them the I-9 section one, and they filled it out with no issues, but they left their social security card at home, so they will have to provide it to you the next day. Unfortunately, they scoured their house only to find that they had lost it sometime ago. Replacing a document can be a hassle. Sometimes the employee has another ID that can fulfill the same requirements, but most of the time, they will need to get a replacement. The I-9 allows a receipt of a replacement document as a temporary form of identification. However, this receipt is only valid for 90 days after their date of hire. Within that time, they need to secure a replacement document. If they are unable to procure it by the 90-day limit, they may choose to use a different document that satisfies the same requirements. For example, if the receipt was for a list A document, they can choose to provide a list B and list C document instead.
When an employee provides a receipt, be sure to include the word “receipt” in the document title, and mark the expiration date. Once the actual document has arrived, you can cross out the work “receipt” and record the documents information. Make sure to initial and date the change on the form I-9. If the employee provided different documentation, simply fill out a new Section 2 and attach it to the original. Worst-case scenario, the employee may be unable to provide the proper documentation in time. If they have already started working, they should be terminated immediately, and can be rehired once they are able to provide documentation.
What’s this part at the bottom no one ever uses?
You may have noticed a section 3 tucked away at the bottom of the I-9. This is lesser used but important part of the I-9 used for reverification, rehires, or in the event the employee had a name change.
Reverification refers to when an employee’s employment authorization or documentation expires. Its best practice to remind employees at least 90 days before this date occurs, to give them time to gather the proper documentation to reverify. Once they do, you can record the new information in section 3 and sign it. If section 3 is already filled out, you must fill out a new one and attach it.
If you let an employee go and decided to rehire them within 3 years, then section 3 allows you to skip the hassle of completing an entirely new form I-9. Just complete section 3 on the employee’s old I-9, or if it is already filled out, fill out a new one and attach it to the original.
It’s not the end of the world if the form I-9 is filled out incorrectly. Employers can conduct self-audits in order to correct the information. As said before, errors in section 1 can only be corrected by employees, but any other section may be corrected by the employer. When you see an error, you must follow these steps:
Cross out the incorrect information. Simply draw a line through it, so the incorrect information is still legible.
Enter the correct information, as well as adding your initials and the date of the correction.
Make sure to add a note as to why the change was made. If there are multiple errors, you can fill out a new form and attach it to the old one. Never destroy or remove I-9 information, even if it is incorrect.
Internal audits are not required, but if a company chooses to conduct one, an employer must be careful to conduct the audit in a manner that is not discriminatory, especially if they are reviewing only a sample of the I-9s. The U.S. Immigration Customs and Enforcement recommends informing employees when such an audit takes place to avoid the appearance of discrimination or retaliation.
Compliance is Cost Effective
There are still consequences for violations on the I-9, at least when there is a clear pattern of them. Employers could be subjected to civil fines or even criminal penalties, or in a case of discrimination against an employee, a court order requiring a payment or the rehiring of said employee.
What constitutes a violation? On the civil side:
Knowingly hiring and/or continuing to employ a noncitizen who is unauthorized
Not complying with verification requirements
Committing document fraud or abuse
Discriminating against an authorized employee
Failing to notify the Department of Homeland Security of a Final Nonconfirmation
Requiring an employee to provide a financial guarantee to protect liability against verification requirements.
Criminal penalties come into play when the employer is engaging in a pattern of hiring employees who are not eligible to work in the United States.
Ensuring an employee is eligible to work in the United States is an important responsibility, which is why the form I-9 is such an important document. It is also extremely easy to mess up when filling it out, which is why it’s important to know all the common pitfalls. The good news is there is always an easy fix, even if it involves a little more legwork. If you’re unsure of something- no worries! The USCIS has a great website that covers all the rules and requirements, and you can always lean on your HR professionals for more assistance.
For more information about Form I-9 requirements, you can visit the USCIS website: https://www.uscis.gov/i-9-central