Employers are required to complete and retain a Form I-9 (Employment Eligibility Verification) for each newly hired employee. If the form is missing information, or it is not filled out properly, employers may face significant fines. The U.S. Citizenship and Immigration Services (USCIS) recently released guidance to help employers audit their I-9 practices. Here we list some common errors addressed by the USCIS along with suggestions for correcting them:
Problem #1: Section 1 Error by Employee
Section 1 of the I-9 must be completed, signed, and dated by each employee by the end of their first day of work for pay.
USCIS Guidance: If you discover that an employee made an error in Section 1, ask the employee to make any necessary changes. They should draw a line through the incorrect information, enter the correct information, and initial and date the change. Employers are prohibited from correcting errors or omissions on Section 1 of the form.
Problem #2: Section 2 Error by Employer
Section 2 must be completed by the employer within three business days of the employee's start date. This section requires employees to present documents that establish identity and work authorization.
USCIS Guidance: To correct an error in Section 2, the employer should:
- Draw a line through the incorrect information (never erase information);
- Enter the correct or omitted information; and
- Initial and date the correction.
Problem #3: Section 2 Doesn't Reflect Sufficient Documentation
Identity and work authorization documents are considered sufficient as long as the documentation was acceptable under the requirements of the I-9 in effect at the time it was completed.
USCIS Guidance: The List of Acceptable Documents has changed over the years, so don't assume documentation is insufficient because it does not satisfy current Form I-9 rules or does not appear on the list currently in effect. However, if an I-9 in fact does not reflect that the employee provided sufficient documentation based on the rules current at the time of hire or reverification, ask the employee to present documentation that meets the requirements of the current version of Form I-9. Provide employees that claim they are authorized to work in the United States with a reasonable amount of time to address any issues. Once the employee has provided sufficient documentation, staple the completed and signed Section 2 or 3 of the current version of the I-9 to the employee's previous I-9, together with a signed and dated explanation of the corrective action taken. Do not backdate the form.
Problem #4: An Outdated Version of I-9 Was Completed
When completing an I-9 for a new hire, employers must use the most recent version of the form at the time. For employees hired on or after May 7, 2013, the only version of the I-9 that is acceptable is the one with a revision date of "03/08/13 N."
USCIS Guidance: If an employer discovers that the wrong version of the I-9 was completed at the time of hire, but the documentation presented was acceptable under the rules in place at the time, the employer may:
- Staple the outdated completed form to a blank copy of the current version; and
- Sign the current blank version and note why the current blank version is attached (e.g. wrong edition was used at time of hire).
Problem #5: I-9 Missing or Section Never Completed
Employers must complete and retain an I-9 for every employee hired in the United States on or after November 6, 1986.
USCIS Guidance: If an I-9 was never completed or it is missing, complete the current version of the form as soon as possible. If an original I-9 exists but either Section 1 or Section 2 was never completed, complete that section as soon as possible. Never backdate the form. Instead, list the actual date employment began in the certification portion of Section 2 and attach a signed and dated explanation.
Conclusion:
Keep in mind that internal audits should not be conducted on the basis of an employee's citizenship status or national origin, or in retaliation against an employee. The USCIS provides additional suggestions for conducting internal audits and addresses other issues that may arise. Be sure to read the guidance in full.