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For such a seemingly innocuous two-page form, the Form I-9 can be a headache for HR professionals involved in the onboarding process. There are several common Form I-9 mistakes that often go unnoticed. Unfortunately, it’s often not until an audit that these mistakes come to light. The list below contains the most common errors when filling out the Form I-9. Paying special attention to these issues may help save some headache in the future (and potentially some hefty fines).
1. Form I-9 not filled out within correct time-frame
This common problem often comes from the person responsible for onboarding new employees not being aware of the required time-frame for completion. Section 1 of the Form I-9 is required to be completed by the end of the employee’s first day of work. It can be completed any time between the accepted job offer and the end of their first day of work.
If you are concerned about getting the form completed by the end of that first day, consider giving the employee the Form I-9 ahead of time. They can complete the form at home - bringing it in on their first day.
Section 2 is required to be completed by the end of the employee’s fourth day of work. Since Section 2 requires the employee to provide identification documents, it may speed up the process to make them aware of this requirement before their first day.
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If the form is completed after the deadline, do not backdate it. That is fraud. When an auditor views your Form I-9s, they are more lenient towards the late submission - provided that you include documentation acknowledging that the form was completed after the deadline.
2. Using the wrong form
As you may already be aware, the Form I-9 is periodically updated. As the updates roll out, the previous versions are no longer permissible to be used for new employees. The USCIS indicates the expiration date and whether or not the version prior can still be used in the bottom left corner of the Form I-9. Example: 03/08/13 N
You may also be using the wrong form if you use the Spanish version for Spanish speaking employees. The Spanish version of the Form I-9 is only acceptable for use in Puerto Rico. For all instances within the United States, the employee will need to complete the English version of the form. You or a translator are welcome to assist non-English speaking employees fill out the form, just don’t forget to sign the attestation field in Section 1 if you do.
You must ensure that you continue to use the correct form moving forward. Check the expiration date each time that you give a new employee the Form I-9. One way to avoid the issue is to not keep a locally stored version of the Form I-9 either on your computer or a paper Form that is continuously copied. Instead, pull the form directly from the USCIS website each time you need it to ensure that you are using the most up-to-date form possible.
3. Not spot-checking Section 1 before accepting
Not every employee is going to fill out the Form I-9 perfectly - that’s a given. However, these errors in an employee's Form I-9 won’t always be apparent right away. It may not be until an audit that you find out that there is an issue with the form. At this point it is much more difficult to remediate the situation.
The best way to decrease the amount of field errors in the form is to do a “spot -check” of Section 1 of the form once the employee has completed it. Additionally, doing an initial spot-check will save you some headache if you use E-Verify by decreasing the chances of a Tentative Nonconfirmation (TNC). You will want to check for the common field errors such as not using their legal name or leaving necessary fields blank.
Just remember - when spot-checking your employee’s form, you should sign the preparer/translator section if you assisted them in in filling out or correcting the form.
4. Forgetting to purge Forms I-9, following the 3-1 rule
Employers are required to retain each employee’s Form I-9 For the entire length of their employment. When an employee leaves the organization, their form must either be retained for 3 years past the date of hire or 1 year past the date of termination - whichever is longer.
John works at ABC International for six months before leaving for another job. Since John has only worked at the company for six months, his Form I-9 needs to be retained for another two and a half years to satisfy the requirement that the Form I-9 must be retained for three years past the date of hire.
Samantha, who also works at ABC International, quits her job after two and a half years. Her documents will need to be retained for one year past her termination date since that would be longer than three years past her date of hire.
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In both cases, the form needs to be purged when the 3-1 retention requirement is satisfied. The tricky part is keeping track of the purge dates for each employee. There are a couple methods that seem to work for different organizations.
- Using an electronic calendar (Outlook, Google Calendar, etc.), create an event entry for each of the deletion dates for employees as part of your off-boarding process.
- Implement an electronic I-9 filing system with automated document deletion.
5. Accepting copies instead of actual documents in Section 2
When completing Section 2 of the Form I-9 it is very important to remember that the documents required must be originals and must be presented in-person. This means that employees cannot present a photocopied version of their documents. The reason behind this requirement is to reasonably ensure that the documents are genuine (to the extent possible by the employer). Having the employee present the documents in person also helps to ensure that the documents actually belong to them - not someone else.
While in most situations this isn’t a difficult rule to follow, it can get complicated with remote hires. Unfortunately for the employer, there aren’t any loopholes to help you complete Section 2. Using video chat isn’t authorized as a way to verify identity. You will need to use an authorized representative to verify your remote employee for you.
6. Telling employees which documents to bring
Employers need to communicate to employees that they need to bring identification documents with them to work in order to complete Section 2 of the Form I-9. The last page of the Form I-9 lists out all acceptable types of identification that the employee may bring. However, employers may not tell or attempt to coerce their employees to bring specific documents from the list. This rule was put in place to protect employees who are non-US citizens but authorized to work from being discriminated against in the I-9 process. For instance, if an employer specifically asks each employee to bring in a form of ID that identifies them as a US native (US passport, US birth certificate) they are barring work-eligible immigrants from proceeding through the onboarding process at that organization.
The best way to stay clear of this issue is to neither require nor suggest specific documents - even under the preface of convenience. Instead, point the employee to the list of acceptable documents. Explain that they will need to bring in documents based on the requirements. You can explain how the List A,B, and C document requirements work - just nothing more.
7. Forgetting to re-verify documents when they expire
If the documents used to complete Section 2 of the Form I-9 require reverification due to expiration at some point during employment, you will need to do so by completing Section 3 with their updated documents before the original document expires - not after. Much like the process for purging Forms I-9, you’ll need to maintain a system for keeping track of document expirations (electronic calendars or automated I-9 software).
The key is to be proactive and give yourself and the employee enough time to produce the new/updated documents required to fill out Section 3 of the Form I-9.
8. Inconsistency in employee document retention.
Employers have the option (not a requirement) to retain photocopies of the documents provided by their employees when completing section 2 of the Form I-9. If you as the employer decide to retain photocopies of employee identification documents, you must do so consistently for all employees. This is another measure to help prevent immigrant discrimination by requiring photocopies to be stored for certain individuals but not others.
It’s all or nothing.
If during an internal audit you find that you are missing photocopies for some of your employees, you’ll need to either make new photocopies of those documents or purge all photocopies to maintain consistency.
While these are some of the most common Form I-9 errors, there are plenty of other potential errors to look out for. The best way to stay on top of potential problems with your Forms I-9 is to continuously audit both your forms and your processes to ensure that you are maintaining compliance. Should you ever end up being lucky enough to be chosen by Immigration and Customs Enforcement for an I-9 audit, you’ll be very happy that you were proactive in maintaining compliance.