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The I-9 verification process can be tricky for employers to navigate. Even small mistakes can lead to big penalties down the road. That's why it's crucial for HR managers and business owners to understand the most common I-9 pitfalls and how to avoid them.
Introduction
The I-9 form is required by the Department of Homeland Security to verify the work eligibility of all employees hired after November 6, 1986. While completing these forms might seem straightforward, many employers make small yet significant errors that can come back to haunt them.
According to U.S. Citizenship and Immigration Services (USCIS), employers faced over $10 million in civil penalties for I-9 violations in 2021. Fines can add up quickly, especially for larger organizations. On top of civil penalties, I-9 mistakes can also lead to criminal charges, work site raids, and temporary shutdowns.
By learning the most frequent I-9 errors and developing strong verification processes, employers can minimize their risk. This guide will cover:
Common mistakes when completing I-9s
Errors in the reverification process
Issues with record retention
How to perform internal I-9 audits
Best practices for I-9 compliance
Avoiding these pitfalls will help ensure your business doesn't become the next I-9 penalty statistic.
Top I-9 Completion Mistakes
While completing a high volume of I-9 forms, it's easy for small errors to occur. But when it comes to I-9s, the devil is in the details. Here are some of the most common mistakes made when initially completing the I-9 for new hires:
1. Accepting Invalid Documents
One of the top errors is accepting documents that don't properly establish identity or work eligibility. The list of acceptable documents is clearly outlined in the I-9 instructions. Employers must reject any invalid documents.
Some common mistakes include:
Accepting an expired document
Accepting a photocopy instead of an original document
Accepting a fake or forged document
Improper combinations of documents (e.g. two identification papers but no work eligibility document)
Ensure all staff responsible for I-9 verification understand the list of acceptable documents thoroughly. Documents should also be reviewed carefully for any tampering or fraud.
2. Failing to Fill Out All Sections
Another common error is failing to fill out each section of the I-9 properly.
Section 1 must be completed no later than the first day of employment. This section should be filled out by the employee.
Section 2 must be completed within 3 business days of the employee's start date. This section is the employer's responsibility.
Section 3 only needs to be completed if reverifying an employee's work eligibility.
Leaving any section blank can lead to penalties. Double check that each part of the I-9 is filled out accurately and on time.
3. Making Photo Copying Mistakes
If an employer chooses to make photocopies of an employee's documents for their records, there are very specific rules around photocopying:
Copies must be made after completing Section 2 (not before)
The word "photocopy" must be stamped on the new copies
Copies can only be made of the front and back of the ID document, not the work eligibility document
Copies must be kept with the original I-9 form
Sloppiness around photocopying is often cited in I-9 audits. Follow the guidelines carefully and consistently.
4. Failing to Sign and Date
Another common slip-up is neglecting to sign and date the I-9 form as the employer or authorized representative. This attestation is mandatory.
Double check that:
You've signed Section 2 after reviewing the employee's documents
The employee's start date is entered in Section 2
The form is signed no later than 3 business days after the start date
Unsigned I-9s with missing dates are red flags for I-9 auditors and inspectors.
5. Making Errors on Electronic I-9s
Many employers now complete I-9s electronically using web-based I-9 software. While this can streamline processes, it also opens up room for technical errors, including:
Software glitches leading to missing information
Failure to utilize document validation features
Neglecting to print out and sign completed forms
Not downloading periodic copies for your records
When using electronic I-9 software, ensure it meets all legal requirements. Monitor any technical issues and print completed forms for your files.
Common Reverification Mistakes
For employees who have temporary work authorization, employers are required to reverify their documents periodically. This reverification process is often where many I-9 issues arise. Here are some tips for avoiding reverification missteps:
1. Not Reverifying on Time
It's essential to reverify an employee's documents before their initial work authorization expires. Track expiration dates closely for temporary documents like green cards and work visas. Set reminders to reverify well in advance of expiration dates.
2. Reverification Without Proper Documentation
When reverifying, examine the employee's new unexpired documents carefully. Only certain documents are acceptable for reverification per USCIS rules.
You cannot reverify with a "receipt" demonstrating the employee only applied for a renewed document. You must wait until they receive the new valid document.
3. Failing to Complete Section 3
When reverifying, make sure to fully complete Section 3 of the I-9. Enter the:
New expiration date
Date reverification occurred
Name of person who conducted reverification
Signature of reverifying employee
Update Section 3 each time reverification happens. Don't let this section remain blank.
4. Reverification After Expiration
Try not to let work authorization lapse during the reverification process. If previous documents expire before new documents are presented, strictly follow the rules about continuing or terminating employment.
Never continue employing someone who has failed to provide proof they can still legally work. Doing so can invalidate your entire I-9 compliance program.
Record Retention Issues
Maintaining proper I-9 records is a big compliance challenge for employers. Here are some common I-9 document retention traps:
1. Improper Storage
According to the rules, I-9s can be stored on paper or electronically, but certain precautions must be taken:
Store forms separate from general employee files
If using paper storage, use binders or folders specifically for I-9s
If storing electronically, keep I-9s secure and separate from other data
Implement controls limiting access to I-9 records
Co-mingling I-9 documents with general employee records is an easy mistake but can cause verification issues later on.
2. Holding Records Too Long
You must retain I-9s for all employees, but only for a prescribed amount of time:
3 years after date of hire
1 year after employment ends
Whichever is longer
Having I-9 records beyond the required timeframe leaves you open to potential discrimination claims. Implement processes for securely disposing of I-9s when retention period ends.
3. Failing to Keep Copies
Whenever an employee's work authorization changes, you should reverify and keep copies of both old and new documents on file.
Keeping only the current verification documents is insufficient. All prior I-9 iterations should be retained according to schedule.
Performing Internal I-9 Audits
Given how many little mistakes can add up, regularly auditing your own I-9 records and processes is essential. Here are some tips for internal I-9 audits:
Review a Statistically Valid Sample
Don't attempt to review every single I-9 form. Instead take a random sampling of 10-15% of your total I-9s from last year. The sample should be large enough to catch any systemic issues.
Audit with Fresh Eyes
Have someone not directly involved in your normal I-9 processing procedures conduct the audits. They will provide an impartial Perspective and catch errors others may miss.
Use a Standard Checklist
Create a checklist that covers every area of I-9 completion, reverification, storage, retention and documentation. Keep track of any forms with missing information or sections, expired documents or other noncompliance.
Conduct Audits Annually
Once a year, do a full internal I-9 audit. More frequent spot checks of smaller samples can supplement annual audits. Develop reminders and assign audit responsibilities.
Remediate Issues Promptly
Correct any I-9 errors uncovered during audits right away. Put new processes in place to prevent similar issues going forward. You want a clean audit result next time.
Best Practices for I-9 Compliance
Avoiding common pitfalls takes dedication and strong processes. Here are some best practices any employer can implement to achieve I-9 form compliance:
Provide Ongoing Employee Training
Ensure all staff involved in the I-9 process from HR to managers understand the requirements and importance of compliance. Annual I-9 training is recommended to refresh knowledge.
Limit Access to I-9 Records
Only employees who need to access I-9 documents to perform their duties should have access. This limits vulnerability to audits and discrimination claims.
Use Preprinted Forms with Instructions
The latest version of the I-9 form contains instructions right on page one. Using these preprinted forms can reduce errors compared to separate instruction sheets.
Utilize Electronic I-9 Systems
A good electronic I-9 solution can provide structure and reminders to avoid many common mistakes. Just make sure proper printouts and copies are still kept.
Centralize I-9 Storage and Audits
When possible, designate one trained professional responsible for the entire I-9 process across all locations. This ensures consistency.
Conduct Self-Audits Before External Ones
Stay one step ahead by doing your own internal I-9 audits routinely. This helps you catch and correct any issues before the government does.
Follow Up on All Reverification Dates
Ensure reverification deadlines don't slip by having a stalwart system for managing reverification dates. Set reminders for follow up.
Work with Legal Counsel
Have an experienced attorney review your I-9 processes and provide guidance. They can identify compliance gaps and reduce legal risks.
Conclusion
While I-9s may seem straightforward on the surface, small mistakes can easily occur when verifying numerous employees. Errors or omissions in even a few forms can result in fines of thousands of dollars.
By knowing the most common I-9 pitfalls, conducting self-audits, and centralizing verification processes, employers can avoid penalties and legal hot water. Paying close attention to details across the I-9 lifecycle is the best defense.
Consistently demonstrating rigorous compliance also provides a level of protection in the event of an immigration raid or audit. Don't let small errors put your business at risk. Take proactive measures to ensure your I-9 verification procedures are flawless.
Q&A
Q: What are some of the most common mistakes made when initially completing I-9s for new hires?
A: Common errors include accepting invalid documents, failing to fill out all sections properly, making photocopying errors, neglecting to sign and date the form, and making mistakes on electronic I-9s.
Q: What should employers be cautious of when reverifying an employee's expired work authorization documents?
A: Key pitfalls include failing to reverify before expiration, accepting improper documentation, neglecting to complete Section 3, and continuing employment after authorization lapses.
Q: What are some issues that can arise around record retention for I-9s?
A: Retention problems include improper storage, holding records longer than required, and failing to keep copies of re-verifications.
Q: How can employers proactively avoid I-9 compliance issues?
A: Best practices include training staff, limiting I-9 access, using electronic systems, designating an I-9 administrator, and conducting internal audits.
Q: What penalties can employers face for I-9 noncompliance?
A: Consequences can include civil fines over $10k, criminal charges, worksite raids, and temporary shutdowns. Even small errors can lead to big penalties.
Q: How often should employers conduct internal I-9 audits?
A: Annual full audits are recommended, along with more frequent spot checks of a sample of I-9s to identify any issues.
Q: What steps should be taken if I-9 errors are found during an internal audit?
A: Any issues uncovered should be remediated promptly by correcting errors or putting new processes in place to prevent future occurrences.
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