Employers, are you confident with your I-9 files? Last year, nearly 6,000 employers’ I-9 records were audited, leading to several dozen civil and criminal convictions. While most employers don’t intentionally maintain false I-9 forms, or knowingly accept falsified forms from employees, there are many employers who simply make honest mistakes. Here’s a quick review of basic I-9 employment eligibility verification requirements and how you can avoid common mistakes.

What is form I-9?

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers are required to ensure proper completion of Form I-9 for each individual they hire for employment in the U.S., including citizens and noncitizens. Both employees and employers must complete the form.

The employee is responsible for filling out Section 1 of the form when he/she is hired. Within 3 days, the employee must present original documents to his/her employer that establish identity and employment eligibility. Section 2 of the I-9 must be completed by the employer 3 days after the employee’s start date. Section 3 must be completed by the employer only if the employee’s temporary employment authorization has expired.

Avoid an inquiry, some questions you should ask yourself

Typically, I-9 mistakes that lead to audits involve omitting basic information like the employee’s middle initial, date of hire, job title, etc., or anything that may cause a mis-match of information. Here are some other things you should be double checking.

Are you using an up-to-date form I-9? You can access the form on the U.S. Citizenship and Immigration Services (USCIS) website. The most updated version expires on August 31st. New employees must complete Section 1 of the form upon hire. Employers need to complete the rest within three days of the employee’s start date.

1. Are you including independent contractors? Unless you know of any that aren’t authorized to work in the U.S., you don’t need to worry about independent contractors filling out the form.
2. Did you receive documentation from employees? The three day deadline for employers coincides with the deadline for your employees to (personally) provide you with the documentation you need to complete part 2 of the form.
3. Did you examine each original document from employees? According to the USCIS, you are required to physically examine each original document the employee presents to determine if the document appears to be genuine and relates to the person presenting it.
4. Do you have employees with expiring visas? Did you hire a non U.S. citizen who’s here on a visa? It’s up to you to re-verify that the employee’s work authorization has been renewed before the original visa expires.

Can I correct errors I find on employees’ I-9s?

Employers cannot correct errors or omissions in Section 1 of form 1-9. Employees who need assistance correcting errors in Section 1 can however consult a preparer and/or translator. An employer can only correct errors made in Section 2 or 3 (don’t forget to initial and date your corrections!).

May an employer audit a particular employee’s Form I-9 in response to a tip that the employee is not work-authorized?

An employer violates the employer sanctions provision of the INA if they continue to employ an employee with actual or constructive knowledge that the employee is unauthorized to work. While tips concerning an employee’s immigration status may lead to the discovery of an unauthorized employee, tips and leads should not always be presumed to be credible. Heightened scrutiny of a particular employee’s Form I-9 or the request for additional documentation from the employee based on unreliable tips may be unlawful, particularly if the tip was made based upon retaliation, the employee’s national origin, or perceived citizenship status.

Is an employer required to terminate employees who, as a result of the employer’s internal Form I-9 audit, disclose that they were previously not employment-authorized, even though they are currently employment-authorized?

No. This is not required by law. In cases where an employee has worked without employment authorization or with a false identity or fraudulent employment document(s), and the employee has later presented acceptable documentation(s) and is currently employment-authorized, the employment eligibility verification provisions do not require termination of employment. An employer may continue to employ the employee upon completion of a new Form I-9 noting the authorizing document(s), and should attach the new Form I-9 to the previously completed Form I-9 together with a signed and dated explanation.

How long do I have to keep I-9s?

You have to retain I-9s for three years from the date of hire, or one year after an employee leaves employment (whichever is longer). For example let’s say an employee leaves your company after one year. You would need to retain his/her I-9 for two more years.

What are the penalties for noncompliance?

If you are audited, you could face penalties for each mistake on each form. Typically penalties range from $200 to around $2,000 per mistake. Bear in mind that if you consistently make the same mistake on each form, penalties can grow significantly.

Be sure to properly complete and retain Forms I-9 for each employee. You don’t want to incur costly penalties. We can help you stay compliant —reach out to us at any time.