Beware of these Rookie I-9 Mistakes
Ensuring Compliance with Work Authorization Verification Mandates Should be Every Employer’s Priority Today
Unfortunately, many employers task inexperienced HR staff with collecting I-9s, which can cause costly headaches down the road. Read on to discover the most common rookie mistakes and how to avoid them.
Mistake #1: The Employer has Ignored The I-9 Requirement Altogether
The most obvious mistake is if the employer does not collect and store an I-9 either because they are unaware of the requirement or they do not believe it applies to them. ALL employers in the United States are required to ensure that their employees complete an I-9 and are required to store them for the applicable retention period (discussed more below).
Mistake #2: HR is using an Outdated Version of the I-9
Every few years, USCIS releases a new version of the I-9 with an expiration date in the top left-hand corner. Every employer should check their current form to ensure it has not expired. You can find the most recent I-9 here. Note, this form expires on May 31, 2027 so a new form should be released prior to that date.
Mistake #3: The Employer Completes all or of Part of Section 1
The employer is not permitted to complete any part of Section 1, including making minor entries such as completing work authorization expiration dates, entering identification numbers or dating the signature. Only the employee and/or their preparer or translator who must also complete the required attestation is permitted to make any entry on Section 1. The employer is obligated to give the blank I-9 to the employee and also provide the employee with the instructions on how to complete the I-9. Click here for I-9 instructions in English. Click here for I-9 instructions in Spanish. Note, unless the employer is in Puerto Rico, its employees must complete the English version of the I-9.
Mistake #4: Employees Don’t Complete Section 1 Until the Employer Completes Section 2
Employees are required to complete Section 1 of the I-9 on or before their first day of employment (provided they have received an offer of employment). However, employers have a three day grace period in which to complete Section 2 of the I-9. You must ensure that employees complete Section 1 at the same time they complete other new hire documentation.
Mistake #5: The Employer does not check Section 1 as soon as it’s Completed
The employee is obligated to complete most areas of Section 1 completely including entering any work authorization expiration date and the A-number or USCIS number. Exceptions include the social security number, telephone number and email address. Most important of all, the employee is required to sign and date Section 1 and accurately disclose their citizenship or immigration status including any expiration dates and identification numbers. While it’s relatively easy for the employer to fix issues in Section 2, they must call back the employee to fix issues in Section 1. Upon receiving the I-9 from the employee, the employer must review it to confirm that the employee has disclosed they are authorized to work in the USA.
Mistake #6: Using White-Out or Some Other Method of Concealing Mistakes that Masks the Erroneous Entry
The only way to correct an erroneous entry on the I-9 is to draw a line through the mistake, write in the correct response near the original response and date and initial the correction. It’s important not to white-out or scribble over the mistake. If there are a lot of mistakes on the I-9, you should simply create a new one and attach it to the old one.
Mistake #7: Backdating the I-9
Any signature date must relate to the actual date the employer’s representative or the employee signed the I-9. You are never permitted to backdate these signatures. If you are correcting an I-9, you put the date of the correction next to the correction. If there are so many corrections you wish to prepare a new I-9, then simply attach the new I-9 to the old one.
Mistake #8: Not storing the I-9 separately
ICE is permitted to give employers only three-days notice that they intend to conduct an audit of their I-9s. If you have more than 100 employees or an understaffed HR department, you don’t want to have to dig through paper or electronic files to find the I-9 to comply with the audit. Ideally scan your I-9s to a separate folder at new hire so that they are easily accessible for an internal or external audit. A copy of the I-9 should also be stored with the personnel file simply because if the employer makes copies of employee provided documents, it is helpful to also have the I-9 easily available for a personnel file audit.
Mistake #9: Mislabeling permanent residency status as Authorization to work in Section 1 or as an Employment Authorization Document in Section 2
The I-9 has a separate checkbox for immigrants with permanent residency status and distinguishes it from other forms of work authorization for immigrants. This is because permanent residency status is permanent (absent some unique and rare circumstances). Although the permanent resident card may expire, the actual status of the holder remains the same. Thus, employers do not have to follow up on expired permanent resident cards like they should with Employment Authorization Documents or EADs when they expire. The EAD expiration date is when the employee’s work authorization expires absent a renewal. When this occurs, the employer must complete the I-9 reverification form for the employee.
Mistake #10: Engaging in Discriminatory Practices Based on the Employee’s National Origin
Employers are not permitted to treat employees differently based upon their national origin. If one employee indicates they are an Immigrant with work authorization and another discloses they are a US citizen, the employer cannot only take copies of the immigrant’s supporting documentation without doing the same for the US citizen. Furthermore, the employer is not permitted to request specific work authorization documents from any employee. If an employee is a permanent resident and submits a driver’s license and social security card (with no restrictive language on it), then the employer cannot demand a copy of the employee’s permanent resident card. While it may seem prudent to ask for proof of the permanent residency status by asking for the card, the card is not necessary to establish that the employee is authorized to work when the employee can provide an unrestricted social security card.
For more information on compliance with work authorizations visit our post Are You Prepared for an Ice Raid. If you need assistance with an I-9 audit, contact us.
