When a new employee joins your company, it’s vital you and the employee complete an I-9 form and that you keep it on file to avoid penalties. What appears to be a simple two-page form can be laden with opportunities for small mistakes and confusion. Read on to understand how to avoid common I-9 pitfalls and stay compliant.
Before we dive into these common mistakes, let’s talk about the three sections of the I-9. When an employee joins your company, he or she completes Section 1. Make sure that the employee verifies the information and signs the form. Then, the baton is passed to the employer, who completes Section 2 and in some circumstances Section 3. Section 2, which includes details about the employment eligibility of the employee, must be completed by the employee’s third day of employment. Section 3 applies for employees that require work authorization. For a comprehensive overview, visit this guide to everything you need to know about the I-9.
Now, onto the most common I-9 mistakes that can potentially cause havoc for your business—and important advice on how to avoid them.
Mistake 1: Missing due dates for I-9 forms
The I-9 form has strict due dates for the various sections, and missing the due date could cost an employer up to $2,292, according to the U.S. Immigrations and Customs Enforcement.
The employee must complete Section 1 before close of business (COB) on the first day of employment. The employer must fill out Section 2 before COB on the third day after the employee’s first day of employment. For example, if the employee’s first day is Tuesday, Section 1 must be completed Tuesday and Section 2 must be completed before COB Friday. If the employer operates over the weekend, those days will be counted as business days.
Note: The U.S. Department of Homeland Security has issued a limited I-9 compliance flexibility policy due to COVID-19, through September 19, 2020. This means that if employees are not physically present at the work location, employers will not be required to review identity and employment authorization forms in person, and can inspect documents remotely via video, fax or email.
Mistake 2: Neglecting to enter correct List A, B, or C documents on the I-9
Employees must provide List A documents or B and C documents to verify their identity and authorization to work. Often the wrong documents are used for completing the I-9, whether it’s only one of the List B or C documents present or the entirely wrong documents. Make sure the right document details are entered.
List A documents show an employee’s identity and employment authorization. They include U.S. passport or U.S. passport card; permanent resident card (Form I-551); employment authorization document card (Form I-766); foreign passport with Form I-94; passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94; and foreign passport with a Form I-551 stamp.
List B documents show an employee’s identity and must be presented along with a List C document, which shows employment authorization. List B documents include driver’s license; government-issued ID card; school ID with photo; voter registration card; U.S. military card; Native American tribal document; or driver’s license issued by a Canadian government authority. For employees under the age of 18, these documents are also accepted: school report card; doctor or hospital record; and day care or nursery school record.
List C documents include U.S. Social Security card that is unrestricted; consular report of birth abroad (Form FS-240); certification of birth abroad issued by the U.S. (Form FS-545); certification of report of birth issued by the U.S. (Form DS-1350); original or certified copy of a birth certificate; U.S. citizen ID card (Form I-197); or identification card for use of resident citizen in the U.S. (Form I-179).
Mistake 3: Requesting to see specific documents from the employee
When it comes to Section 1, the employer’s role is to ensure it’s complete. Do not ask for specific supporting documents within the lists to verify the information in Section 1. For example, if an employee presents a Permanent Resident card as the List A document, do not ask to see a U.S. Passport. If the document is considered sufficient by U.S. Citizenship and Immigration Services, then it should be considered sufficient by you, the employer.
Requesting to see a specific document could result in unfair immigration-related discrimination, going against the Immigration and Nationality Act. Employees who look and/or sound foreign must not be treated differently than others during the recruiting, hiring, and verification processes, according to U.S. Citizen and Immigration Services.
Mistake 4: Getting rid of I-9 forms for termed employees
When an employee leaves the company, you may be tempted to get rid of his or her I-9 form to clear space in your storage area, but don’t act quite yet.
Employers must keep I-9 forms for termed employees for 3 years from the date of hire or 1 year from the date of termination, whichever is later. If I-9 forms are disposed of early, they may be considered missing.
Mistake 5: Backdating the form
If an employer missed the strict time period to complete the I-9 form, there may be a temptation to backdate the form or change incomplete or missing I-9 forms. This will likely result in complications, an investigation, and fines. List the right date and don’t yield to the potential pull to backdate the document.
Mistake 6: Using an outdated version of the I-9 form
The I-9 form is updated periodically and when updates are made, the outdated version is no longer accepted for new employees. For instance, the form was updated in 2013, 2016, 2017, and 2019. The I-9 form includes an expiration date in the bottom left corner, so be sure to check this on a regular basis. To avoid any issues, download the latest form directly from the USCIS website.
Mistake 7: Creating discriminatory practices and processes for I-9 forms
All employee verification processes and standards for employees should apply to all employees, regardless of national origin. Panda Express learned the hard way in 2017 when the company deemed discriminatory Form I-9 practices.
The company required legal permanent U.S. residents to reestablish their work authorization when documents expired, but didn’t require the same of U.S. citizen employees. The Department of Justice ruled that this was a clear violation of federal immigration laws, resulting in hundreds of thousands of dollars in fines as well as strict training requirements for the staff.
Make sure that your processes and standards apply across the employee base and aren’t subject to discrimination.
Mistake 8: Not conducting internal I-9 audits
Simply correcting mistakes on I-9 forms is a good short-term fix but doesn’t get to the long-term solution of reducing I-9 violations. Conducting internal I-9 audits and providing training can help with changes in I-9 form standards and practices.
Consider creating a Form I-9 checklist to guide the process and review of I-9 forms.
Mistake 9: Forgetting to remind employees with time limited work authorization about upcoming document expiration
Employees with time limited work authorization require Section 3 to be completed. When the document is nearing its expiry, the employer must notify the employee–to be specific, there must be at least 90 days’ notice prior to the expiry.
Don’t let these small mistakes create havoc for your company. Take a diligent and methodical approach to completing and auditing your I-9 forms.
