The Immigration Reform and Control Act of 1986 requires U.S. employers to verify an employee’s identity, work authorization and employment eligibility with the I-9 form.
The proper completion and storage of these documents is vital, as I-9s must be filed and produced upon request by Immigration and Customs Enforcement. An I-9 audit can take place at random, and failure to comply can result in hefty penalties.
While the form itself is only two pages long, it also has 22 pages of instruction, so it’s easy for mistakes to be made.
The good news is, you can avoid the top 10 mistakes by using this handy list as a guide.
1. Not filling in the blanks
It may seem obvious, but everything must be filled out on the I-9 form. Too often, employees or employers leave something they consider inconsequential blank.
However, what seems like a harmless mistake could have consequences – and that includes something as simple as not filling in dates.
For example, a mistake by an employee could impact their immigration status if they’re trying to gain U.S. citizenship. This could, in turn, affect your ability to keep that individual on as an employee. When you’ve put time and money into developing an employee, that could be a big loss for your company.
Don’t be careless as you fill out this form, and be smart about following proper procedures. If you aren’t cautiously reading through the form and instructions, you can easily miss something.
2. Waiting to have employees fill out their part of the I-9
Employees must have their part of the I-9 filled out by the first day of work, and you – the employer – only have until the third day.
For example, if the employee begins work on a Monday, they need to have the I-9 filled out by then, and your company needs to have your section filled out by Thursday. As a best practice, get in the habit of filling out your employer part the same day, if possible, so it isn’t forgotten.
Just be sure to steer clear of filling out employee information (Section 1) yourself. This section must be completed by the employee (or their preparer/translator).
3. Filling out the preparer/translator certification section yourself
Employers often think they’re responsible for filling out the preparer/translator section of the form.
Conversely, this section should only be completed by a third party if the employee receives assistance filling out the form. For example, a preparer or translator might assist a remote or disabled employee. Or, an employee who doesn’t speak English as their first language might require a translator.
In other words, an HR representative or administrator in your company, who might be in charge of storing documents, shouldn’t touch this section.
If an employee doesn’t use a preparer or translator, be sure they check the box at the top of this section that says “I did not use a preparer or translator.”
4. Handing out the Spanish language form to Spanish-speaking employees
It’s tempting to give your Spanish-speaking employees the Spanish version of the I-9. But resist. That version can only be used in Puerto Rico.
However, it can be used as a reference for the employee to fill out the English version, so use it as a resource when necessary.
5. Requiring certain types of documentation
An employer can’t dictate the type of employment authorization documentation to verify an employee’s right to work. From passports to driver’s licenses to social security cards and beyond, employees have options.
If more information is requested by an employer than required, it could violate the Immigration and Nationality Act’s anti-discrimination provision.
To verify an employees’ work eligibility, you can use E-Verify. While required in some states, it’s also a great resource elsewhere to help ensure a legal workforce.
6. Using the wrong type of visa
When reviewing the worker’s documents, don’t get tripped up by the type of visa provided.
For example, you’ll want to make sure the document is not a tourist visa.
If you aren’t sure, refer to the U.S. Citizen and Immigration Services website to find examples of the type of visa you’re reviewing.
7. Not inspecting expiration dates
Expired passports used to be an acceptable form of ID, but that’s not the case anymore. You must inspect all expiration dates on the documents.
If an employee brings in an expired document, you’ll have to request that they either provide another acceptable document, or ask them to get the existing one renewed. In certain cases, a receipt indicating the update of the expired document may be acceptable.
8. Not storing the form long enough
A common mistake for employers is that they think they only need to keep the I-9 for three years.
Instead, you need to keep it for as long as the employee works for you plus one year, or for up to three years, whichever is longer. Use this I-9 storage calculation tool for help determining how long to hold onto the form.
If you don’t keep your forms long enough and you’re audited, you may be in violation of the law.
9. Improperly storing documents
The U.S. Citizen and Immigration Services maintains specific requirements on how your I-9 documents should be stored.
For example, I-9s should be stored separately from other personnel files so they’re easy to access in an audit. In case of an audit, you’ll be expected to hand over the forms within three business days.
Also, be sure that your I-9 forms are kept in a secure area. Be aware that sensitive employee information is contained within the forms.
Additionally, if you choose to store documents electronically, be sure system security requirements are met.
10. Responding to I-9 audits too quickly
When an audit occurs, many business owners get flustered and immediately hand over documents. Don’t make this mistake – you have three days to respond and get your paperwork in order.
You shouldn’t be intimidated by federal agents. You can and should take the allotted time to organize your files and make sure nothing is missing before submitting.
Avoid the tough consequences of I-9 mistakes
With this go-to list, you should now understand the potential mistakes that can be made in the I-9 process – and how to avoid them.
Keep in mind that when there is a pattern or practice of continuous violations, you or your company may be subject to civil fines or criminal penalties. It can also impact your ability to hire workers in your state, depending on the state regulation.
Move forward cautiously and seek HR compliance support from professionals when you need it.
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