What Is A Form I-9 Audit

Employers have been required to comply with the Form I-9 practices set forth by the federal government since the 1986 Immigration Reform and Control Act was passed. What is new is that in recent years there has been an uptick in U.S. Immigration and Customs Enforcement audits, and that has many employers feeling anxious about their compliance status. It leaves many companies wondering exactly what is a Form I-9 Audit and what they can do to prepare.

What Is a Form I-9 Audit and Why Should You Care?

When the above act passed, it mandated that employers complete a Form I-9 for every employee, with the purpose of verifying their eligibility to legally work within the United States. The process can sound deceivingly simple, except for the following details:

  • The form has more than one thousand regulations.
  • There is an instructional manual of more than one hundred pages.
  • There are three different sections with very unique and specific guidelines and deadlines.

In other words, the process is far more complex than completing a form, and the more complicated a procedure becomes, the greater margin there can be for mistakes. Even mistakes that are caught have to be corrected according to exact procedure or it could become an even bigger issue. Unfortunately, Form I-9 errors can make for nightmare audits.

With the recent increase in the number of audits happening nationwide, employers can no longer simply hope that they are compliant in the rare event they should be audited. Even the most diligent employers who operate without an extra resource, such as digital I-9 software, are at greater risk of making a small mistake. The problem is that a small mistake can yield hundreds if not thousands of dollars’ worth of fines, especially if the mistake is repeated on multiple forms.

The good news is that with the help of resources like digital I-9 software created with the knowledge and experience of immigration attorneys, employers can add an extra layer of protection to their process, ensuring that they have better chances of being found compliant should they be audited.

What to Expect in the Event of an Audit

It is prudent for employers to protect themselves in the event that they are audited instead of just hoping that they are not. An audit can happen to any business at any time, and that is largely out of an employer’s control. What is in their control is to be as prepared as they can be and know what to expect:

  • The Notice of Inspection. This is often the first acknowledgement that ICE will be conducting an audit. Being presented with this notice means an employer must give the auditing party all requested I-9 Forms and relevant documents concerning documentation, licenses, payroll, etc. within three business days. While it is normal to feel the pressure of an impending audit you should request time to ensure accuracy in collecting this information to ensure it is done correctly. In some limited cases, an extension may be possible.
  • Notification of designated company personnel. Most companies upon receiving a Notice of Inspection will reach out to their human resources department, CEO, and even legal counsel to ensure that the business’ rights are being protected amidst the audit.
  • Penalties. If a violation is discovered in an audit, it can result in punitive fines and other consequences. It is worth noting that penalties are either civil or criminal in nature and can be given to both employees that are not authorized to work and their employers. Employers should also be aware that the fallout from compliance violations of the Form I-9 can go beyond fines to include bad publicity, partial or full loss of work force, and potentially the loss of an employer’s right to continue doing business.
  • Corrections window. Should there be technical or procedural Form I-9 issues discovered in the audit, the employer is usually given a window of ten days to make the necessary corrections. At the end of that time, if the corrections are not accurate, the violations can result in a Notice of Intent to Fine.
  • Notice of Intent to Fine. Within thirty days of the receipt of this type of notice, an employer can either work to reach a settlement or request an official hearing.

How to Be Better Prepared for an Audit

No business looks forward to an audit, but the chances are decent that your business could be subjected to one. There are several steps employers can take to be better prepared for a Form I-9 audit, including:

  1. Properly training staff working with Form I-9 completion and management. One of the keys to ensuring protocol is followed to the letter for the Form I-9 is to properly train the individuals involved in that process. It can be wise to host trainings several times a year for the purpose of review as well as educating new staff.
  2. Enlist the help of digital I-9 software for an added layer of protection. Modern software is designed to streamline the process while helping to minimize common human errors such as blank or incomplete fields or missing signatures on a form. The system is designed to alert the employer so the mistake can be addressed before it is officially submitted.
  3. Regularly perform a self-audit to help catch issues before an official audit takes place. A reputable digital I-9 software program will come with a feature that enables an employer to perform a self-audit to be more proactive in preparing for official audits.

While employers may be wondering what to expect from a Form I-9 audit, the real question they should be asking is if they are ready for the audit? The best ways to be prepared for an audit are to be proactive, give attention to details, and rely on industry resources such as digital I-9 software.

Top 6 Points Employers Can Get Wrong When It Comes to the Form I-9 and E-Verify

When it comes to new hires, there is no shortage of rules and regulations for employees and employers to comply with. This sentiment holds even more true when it comes to navigating the Form I-9 and E-Verify, but there are six top points employers can get wrong when it comes to these hiring practices. Many of these are not intentional choices to disregard the rules, but rather are the mistaken reliance on ill-informed resources. Intentional or not, inaccurate information can lead to being non-compliant, and that can come with serious punitive consequences.

How Employers Often Get Connected with Inaccurate Information

It is worth restating that by and large, most companies do not make it a point to purposely deviate from standard Form I-9 and E-Verify rules and regulations.

For example, when people do their taxes for themselves, they use the Internal Revenue Service’s tax document but will use informative resources such as tax software to complete it. The document itself explains much of the information needed, but tax software is geared toward streamlining the process so taxpayers will not have to go line by line on the form with painstaking attention to detail. However, if using an inaccurate fly-by-night software program, it can easily create a tax nightmare.

Following the rules and regulations regarding the Form I-9 and E-Verify can work much the same way. Consider the following:

  • The Immigration Reform and Control Act which essentially introduced the Form I-9 was passed in 1986.
  • The E-Verify program was not established until 1996.
  • In the last thirty years, group after group (not all reputable or trustworthy) has established additional resources for navigating the Form I-9 and E-Verify.
  • There have been minor yet important changes to these employment verification tools over time.

When considering the amount of time that has passed since these regulations were established and the number of changes that have occurred over that time span, it is more than possible for rules and regulations to be reworded by an uneducated resource in a way that affects the original integrity of the statement. In other words, a resource who is not a stickler for details may present a watered-down version of a rule or regulation that could misrepresent the requirements and create compliance issues for an employer if audited.

The Top 6 Points Employers Can Get Wrong When It Comes to the Form I-9 and E-Verify

While bad information can abound when it comes to these hiring practices, the top 6 points employers can get wrong when it comes to the Form I-9 and E-Verify are:

1. Information Recording System.

The Form I-9 may only have three sections, but it covers an enormous amount of information. If a field or signature is accidentally left blank, it can lead to compliance problems. A piece of paper cannot warn an employer that they missed a required blank on the form, but digital I-9 software can. It only makes sense to trust your work to a system that helps catch mistakes before they become a compliance crisis. An added bonus to using digital I-9 software is that has integration with the government’s E-Verify site is that it will auto populate fields in E-Verify, which helps limit mistakes.

2. Process for multiple locations.

Employers that have multiple locations likely have hiring happening at each location simultaneously. Unless each of those facilities has dedicated personnel trained on filling out a paper Form I-9, it is all too easy for mistakes to happen in terms of completing and storing the form. For this reason, many employers who have more than one location choose to handle the Form I-9 digitally for increased consistency and oversight.

3. Deadlines.

For both the Form I-9 and E-Verify, deadlines are an integral component of compliance, and Irules for Section One and Two of the I-9 are different and can be confusing to employers. It is key to remember Section One must be completed before the first day of work and Section Two of the form must be completed three days after the employee begins work. E-Verify submissions must be done within three days of the date of hire as well.

4. Audits.

With a recent rise in the number of audits and investigations that American businesses are being subjected to, companies are regularly performing self-audits in an effort to stay ahead of the curve. However, a self-audit is only as good as the information being used to measure audit success. Digital I-9 software programs typically include a built-in tool to help employers more accurately apply effective auditing practices in their review of completed I-9s.

5. Form I-9 Disposal.

There are specific rules regarding the storage and disposal of the Form I-9. A form should be kept on file for an employee for the duration of their employment. Whether an employee is fired, quits, or retires, the employer should then count three years from the original hire date as well as one year from the date of termination. The later date is the one that should be observed in disposing of the Form I-9.

6. Accountability.

Effectively managing compliance of any sort starts and ends with assigning accountability for key resources to “own” the program’s success within an organization. The old saying that you measure what matters is also true for I-9 compliance. Assigning a program leader, training your staff who are completing all I-9s, producing quarterly leadership reports on the company’s compliance success and/or deficiencies, identifying issues, assigning actions and providing updates on issues being addressed internally to ensure 100% compliance. Visibility drives action, and action ensures success when the company values people’s time and energy to do things right, and to complying with regulations to avoid penalties.

To ensure you do not get tripped up by the top 6 points employers can get wrong when it comes to the Form I-9 and E-Verify, look for a trusted and well educated resource that offers the knowledge of employment attorneys, a comprehensive understanding of federal laws regarding hiring practices and compliance, and successful and proven digital I-9 software designed to accurately streamline the process.

Refugees Asylees and The Form I-9

Most employers are already familiar with the Form I-9 protocol as created by the Immigration Reform and Control Act of 1986, but it is key to stay abreast of changes to the process and the form itself in an effort to stay I-9 compliant. Some important changes were recently made regarding refugees and asylees and the Form I-9, specifically Section 6.3 of the M-274. Essentially, the new update includes detailed verbiage reminding employers that refugees and asylees are allowed to present acceptable documents in their possession for the Form I-9.

Refugees and Asylees and the Form I-9 Update

The U.S. Citizenship and Immigration Services has released an update for the Form I-9 manual regarding refugees and asylees. It is critical that employers note and thoroughly understand these new procedures to ensure they are not unintentionally undermining their compliance status with the federal government.

Employers should take care to observe the two following primary guidelines regarding refugees and asylees. These entities are:

  1. Employment eligible incident to their status and are therefore allowed to work indefinitely as their immigration status does not expire
  2. Able to present employers with any approved List A or a combination of List B and List C documents to prove their identity and employment authorization

Circumstances of Note Regarding Refugees and the Form I-9

The Department of Homeland Security provides refugees admitted to the United States with a Form I-94, often referred to as an Arrival/Departure Record. This document does not expire.

For a refugee that is going through the hiring process and is asked to fill out a Form I-9, they should put a checkmark next to the category “alien authorized to work.” When coming to the Expiration Date field in that first section of the form, they will simply enter “N/A.” This holds true regardless of if they have an Employment Authorization Document with an expiration date.

When it comes to establishing employment authorization and identity, there are some additional considerations. For example:

  • A departure portion featuring an unexpired refugee admission stamp or an electronic Form I-94 with an admission class of “RE” is deemed acceptable for a period of 90 days.
  • However, at the end of the 90 days, a refugee must then show an Employment Authorization Document or a combination of documents from List B and List C.

According to the update, a refugee is also allowed to give employers an expired Employment Authorization Document (EAD) with a Form I-797C, Notice of Action only if the document lists the same employment authorization category as the expired EAD. Additional information and more specific guidelines regarding the automatic extension of EADs can be found in Section 4.4 of the manual.

Circumstances of Note Regarding Asylees and the Form I-9

After an individual has been granted asylum in the United States, the federal agency of the Department of Homeland Security issues the asylee a Form I-94 or Arrival/Departure Record.

An asylee can show employment authorization by:

  • Presenting a Form I-94 with a specific notation or stamp such as “asylum granted indefinitely”
  • Submitting an electronic Form I-94 with an “AY” admission class

While the Form I-94 is an approved List C document that does not expire, asylees presenting it are also required to give an employer a List B document for identity confirmation.

For the purposes of completing a Form I-9 at the time of hire, an asylee must check the category “alien authorized to work” and list the expiration date of Section 1 as “N/A.” This applies to asylees even if they have an expiration date on their Employment Authorization Document.

A key difference between refugee and asylee protocol is that while Employment Authorization Documents are issued to asylees by the USCIS, they are not issued by the Department of Homeland Security and hence are not considered acceptable List C documents.

Why Employers Should Care About the Updates to Refugees, Asylees and the Form I-9 Manual

Employers are held accountable for adhering to federal mandates regarding eligibility and authorization to work for their employees. This means that while portions of the Form I-9 manual could endure some changes, employers are still obligated to observe those changes. Not doing so could negatively impact the employer’s compliance status with the federal government.

Form I-9 protocol violations can yield serious punitive consequences. For every violation that is found, the employer may be penalized. Therefore, if an employer has handled multiple refugees’ or asylees’ employment forms incorrectly due to ignorance over the updated guidelines, each incidence is considered a separate violation. Unfortunately, these violations can stack up quickly and may incur hefty financial penalties that could put a business’ bottom line at risk.

One of the best ways for employers to be cognizant of any upcoming changes to Form I-9 protocol is by enlisting the help of a company with the experience of employment verification attorneys who have an intimate understanding of the complexities and laws regarding I-9 compliance.

Staying on top of proper hiring practices is not a luxury—it is a necessity to best preserve a business’ I-9 compliance. For more information about updates regarding refugees, asylees and the Form I-9 manual, please contact us today.

Anti-Discrimination Hiring Laws

As the United States enters an intense season of attracting and processing new hires, it is critical for businesses to be vigilant in observing anti-discrimination hiring laws. Some employers wrongfully believe that such laws are geared more toward employers that sponsor visas to hire foreign workers, but this is not accurate. Anti-discrimination laws apply to every single business operating in the U.S.

A reminder to abide by anti-discrimination hiring laws is not just a warning to employers who are being purposefully discriminatory, but it is also for those employers who may unintentionally be engaging in those practices due to:

  1. Ignorance About Lawful Hiring Protocols
  2. Compliance Fears Over Complicated Cases
  3. Work Visa Ban Confusion

Protocol Ignorance Can Yield Job Rejections for Some Individuals

While the Form I-9 is a staple for employers to verify a new hire’s identity and work authorization, many view it as anything but simple or straightforward due to the number of steps it requires and the specific rules regarding each section. For those employers who are not adequately trained in the process, this ignorance could lead to the unnecessary rejection of some job applicants.

Protocol ignorance can manifest itself in a number of ways, with some of the most common instances being examples such as the following:

  • Denial of a job applicant with valid work authorization documentation because they will require a visa sponsorship at a later date
  • Mismatch of a social security number that is not investigated with due diligence before firing an individual
  • Wrongful request of a lawful permanent resident to present a green card for the Form I-9
  • Attempt to reverify an employee’s green card as part of the Form I-9 process
  • Use of misleading language such as “U.S. citizen only” during employee recruitment

In many of the above cases, it is possible that the employer is making a mistake for the sole reason that they did not receive accurate training or instruction regarding proper hiring protocols. Unfortunately, even innocent mistakes can be costly in terms of the consequences of non-compliance.

Compliance Fears Could Be a Cause of Discriminatory Practices

The process of hiring employees can be intimidating with the Form I-9, review of key identification documents, and sometimes E-Verify. With so many checkpoints, some employers are hesitant to hire individuals who have the right to work in the U.S. if they are not citizens simply because of the potential risk of handling the procedure in the wrong way and it negatively affecting their compliance status. Afterall, hiring undocumented immigrants can be a substantial compliance violation yielding punitive fines and criminal penalties.

This said, federal immigration anti-discrimination provisions ban:

  • the unjust rejection of valid Form I-9 documents
  • denying individuals employment due to their citizenship or immigration status

Employers must abide by these rules whether sponsoring U.S. visa holders or not.

Work Visa Ban Confusion May Play a Role

On March 31, 2021 the temporary work visa ban on the issuance of new H1B, H2B, H4, J1, and L1 visas ended. An employer who does not make a concerted effort to stay up to date on current legislation regarding legal hiring practices may not be aware about the ban’s expiration. This could result in an employer turning away a work visa which is now considered valid making it a possible case of unintentional anti-discrimination.

Employers should note that federal laws regarding the hiring process can change periodically. This requires that companies stay abreast of the most current legislation to ensure they are conducting practices that boost their compliance rather than taking away from it.

Help for Employers Regarding Anti-Discrimination Hiring Laws

To better equip employers to stay compliant with anti-discrimination hiring laws, it is recommended they form a partnership with an employment verification attorney that also offers services such as digital I-9 compliance software. By enlisting the help of an organization well versed in I-9 compliance, E-Verify, and various compliance solutions, an employer can be better positioned to have best practices when it comes to anti-discrimination hiring laws.

Digital I-9 compliance software can be incorporated into a company’s on-boarding workflow tools to streamline the process and minimize the opportunity for unintentional errors and to create an exceptional new hire experience. Some of the features of digital I-9 compliance software include:

  • Error alerts. The software is designed to help flag common mistakes such as incomplete or blank fields, as well as missing signatures.
  • Deadline alerts. If an employee has a work authorization expiration coming up, the system will notify an employer in advance so there is time to rectify the situation before it becomes a compliance issue.
  • Oversight. The software helps track the process of verification and reverification, as well as document retention.
  • Electronic Storage. 24/7 access to all of the company’s I-9 forms, saving space and providing greater access flexibility
  • Centralized reports. This feature allows a company to better track their overall compliance at any given moment rather than waiting for problems to appear during a crucial audit.

If you are an employer and have questions regarding anti-discrimination hiring laws, reach out to a service provider who understands the complexities of Form I-9 and E-Verify compliance and the laws pertaining to the process.

Reverification: A Critical Step in Compliance, Completing Section 3 of the Form I-9

Most employers are quite familiar with completing a Form I-9 for their newly hired employees, however many are struggling with understanding when it is appropriate to fill out the third section regarding reverification. In fact, completing reverification is a critical step in compliance when employees have a name change, share only a receipt for a lost or stollen List B or C document or when an employee’s work authorization document is temporary and has a limited validity period. All of these types of situations require the employer to track and take timely action to update the employee’s Form I-9 using Section 3.

To be better equipped in understanding the reverification process, what it involves and how to navigate it, we have put together some basic information to help guide you, along with the benefits of using a digital I-9 compliance software program specifically for this purpose.

Reverification for Employment Authorization of Current Employees

The key to reverification for employment authorization is to review and update the employee’s new document(s) before the expiration date of the current version of the listed document. It is considered unlawful to continue employing an individual who is without proof of current employment authorization, and it can negatively impact Form I-9 compliance.

Employees should present employers with a new approved document that shows current and future employment authorization. The employer should then complete Section 3 of the Form I-9. A new form may be required if Section 3 has already been filled out on the original Form I-9 or if there is a more recently issued version of the Form I-9 by USCIS than the version originally used at the time the employee was hired.

This type of reverification requires:

  • the employee’s full name as listed on the original Form I-9
  • an employee’s new name if it has changed, it should be updated here too
  • the title of the document used along with its number and expiration date
  • name of the person completing the form, signature, and the signing date applied

If an additional Section 3 on a new form has been completed (many Section 3 updates may have been needed during the course of a person’s employment) all versions with their respective updates should be stored with the original form I-9.

Reverification or Updating of Employment Authorization for Rehired Employees

It is a best policy practice to complete a brand new Form I-9 for a re-hire. However, in some situations the I-9 regulations allow for the prior I-9 form to be used to reverify employment. For example, employees who rehired prior to one year from the termination date or three years from the date of their original hire date, their prior Form I-9 may be used to reverify their employment and the employer can complete Section 3 to do so IF the prior Form I-9 that was completed is the same as the current legal version of the form. If the version of the Form I-9 has changed since the previously completed version, the employee will need to fill out a new Form I-9 upon their re-hire date.

Additionally, if it is appropriate to use Section 3 for a Rehire and if the employee is still authorized to work, no additional documentation is needed from the employee However, employers must still include:

  • the employee’s last name, first name, middle initial
  • name changes can be reflected in the name fields
  • the rehire date
  • the name and signature of the person completing the form

If an employee’s work authorization has expired, an employer is required to follow the same steps as they would for an employee that is still authorized to work. However, they must also reverify the employee’s employment authorization in Block C.

Recording Identity and Changes of Name for Current Employees

An employee that undergoes a legal name change due to a situation such as getting married, requires completion of Section 3 of the Form I-9. Employers should take note that it is crucial to verify that the employee’s name change is accurate, which could include providing proof via legal documentation such as a marriage certificate. Employers must make a copy of this proof and store it with the Form I-9 to have on hand in the event of an audit. If the legal name change comes without rehire or reverification, the process simply requires the employer to enter the employee’s new name in Section 3 of the Form I-9 as well as sign and date that section.

Should an employee need to change their name due to the previous presentation of a false identity, a new Form I-9 should be completed, but include the original hire date in Section 2 and store these documents all together along with a written explanation for the name update.

Important Considerations for Form I-9 Reverification

Reverification can be an involved process despite the seemingly simple steps listed above. But to complicate matters more, there are a few important considerations for employers to keep in mind:

  • Employers are required to reverify an employee’s work authorization and complete Section 3 of the Form I-9 by the date that the employee’s authorization expires.
  • Employers are not allowed to ask for a specific document for reverification, just as they are not allowed to ask for specific forms of documentation for other sections of the Form I-9. The only stipulation is that for presented documentation to be considered, it must be on the approved list of documents as noted on the form.
  • Reverification must be tracked even for current employees who initially provided proof of temporary work authorization due to a lost or damaged document and those employees must present an actual replacement document to complete all Form I-9 actions
  • Reverification is not required for noncitizen nationals or U.S. citizens, nor is it required when documents such as U.S. passports, U.S. passport cards, lawful permanent residents who presented a Form I-551, Permanent Resident or Alien Registration receipt card for Section 2 (Including conditional residents), or documents in List B that expire.
  • Not handling reverification properly can result in being found non-compliant which can yield some hefty fines. First time offenses generally start at $500 per offense and go up to around $4,500. From there, fines increase significantly for repeat offenses.

How Digital I-9 Compliance Software Can Help

The reverification process requires action to be taken before an employee’s work authorization expires, so it is critical for employers to stay organized, have a good tracking system and be proactive in this area. It can be beneficial for an employer to invest in digital I-9 compliance software that assists with built in reminders, alerting users about soon to be expired work authorizations. Software programs like these are instrumental in helping track expiring documents before they become an issue, secure digital document storage and archiving, and centralizing compliance reporting. Most I-9 tracking systems are also integrated with the U.S. Citizenship & Immigration Services (“USCIS”) E-Verify system and having the two compliance tracking features rolled into one tool brings significant efficiency to an employer’s compliance program.

It is vitally important for a business to clearly understand the Form I-9 reverification process to remain in compliance, and digital I-9 software makes it easy to do so, easing the burden of employers and offering valuable peace of mind.

What Are the Top Errors People Make on I-9s

While the Immigration Reform and Control Act has been in place for more than thirty years, it has become a large undertaking for companies to fill out the Form I-9 for new employees. Some corporations can have upwards of a thousand employees spread out across multiple locations, which means more paperwork and potentially more errors. As the need to become more efficient and accurate with how this information is processed grows, it has many employers asking what are the top errors people make on I-9s in an effort to avoid those errors and the associated fines.

Top Errors People Make on I-9s

Unintentional mistakes can negatively affect an employer’s compliance status. Being aware of the most common pitfalls of filling out the Form I-9 can help employers stay compliant and avoid headaches in the future.

Some of the top errors people make on I-9s include:

  1. Not properly training staff on form protocol
  2. Failure to complete the form in its entirety and by the proper deadlines
  3. Not properly reverifying expired work authorization and updating Section 3
  4. Using an old version of the form
  5. Missing signatures
  6. Incomplete or blank fields
  7. Transposing document numbers
  8. Correcting mistakes in the wrong way
  9. Failure to list the date of the first day of employment
  10. Accepting unacceptable or fraudulent documents
  11. Misplacing completed forms

It can be easy for an employer to glance at this list and say they would never make mistakes such as these, but the reality is that the process can become overwhelming when handling forms for multiple employees amidst other time-consuming responsibilities.

Let’s look at each of the items listed above in more detail.

Not Properly Training Staff On Form I-9 Protocol

Many of the mistakes listed above can be largely avoided if employers simply take the time to properly train and educate staff on administering, processing, and maintaining a Form I-9. An employer who has a thorough understanding of what is needed in each section of the form and the corresponding timeline is better equipped to complete the process accurately and on time.

Failure to Complete the Form in Its Entirety and By the Proper Deadlines

Deadlines are an integral part of the form, with each of the three sections having its own. Failure to complete a section by its documented deadline is grounds for compliance issues that can result in violations and punitive consequences. It is worth noting that there can be multiple violations for one employee if multiple deadlines are missed, and if multiplying that by a dozen employees, fines can add up quickly and negatively impact a company’s bottom line.

Not Properly Reverifying Expired Work Authorization and Updating Section 3

Performing reverification actions is a critical step in compliance when employees have a name change, share only a receipt for a lost or stolen List B or C document or when an employee’s work authorization document is temporary and has a limited validity period. All of these types of situations require the employer track and take timely action to update the employee’s Form I-9 using Section 3. The key to reverification for employment authorization is to review and update the employee’s new document(s) before the expiration date of the current version of the listed document. It is considered unlawful to continue employing an individual who is without proof of current employment authorization, and it can negatively impact Form I-9 compliance.

Using An Old Version of the Form I-9

While it is not done often, there are typically updates to the Form I-9 every few years, which requires a new version to be used instead of the old version. This type of change is announced well in advance and circulated to the human resource industry. Employers should regularly check with the U.S. Citizenship and Immigration Services I-9 Central website to ensure they are using the most current version of the form.

Missing Signatures

Signatures are required on the Form I-9 whether they are tangible or electronic. A missing signature from an employee or employer regarding attestation or another matter could result in a violation affecting compliance.

Incomplete or Blank Fields

The Form I-9 is designed to confirm an individual’s identity as well as their authorization to work within the U.S. Every piece of information the form requires is essential to accomplishing this goal. A blank or incomplete field on an otherwise completed Form I-9 can still result in serious violations and punitive consequences for employers.

Transposing Document Numbers

Whether copying information from a document to a piece of paper or from a document to a digital system, it is critical for employers to enter numbers correctly. If two numbers are transposed in the process it can spell trouble—especially for employers using E-Verify, which may then receive a tentative nonconfirmation (TNC) case result.

Correcting Mistakes in the Wrong Way

Making a mistake on a Form I-9 is not uncommon, but it matters how errors are corrected. Any form using an agent such as White-Out is not acceptable and may lead to compliance violations. In most cases, the best way to correct a mistake on the form is to simply draw a line through the incorrect information, add the corrected information, and then initial and date the correction.

Failure to List the Date of the First Day of Employment

The Form I-9 is comprised of three sections, each of which have their own set of deadlines that largely depend on the exact date of the employee’s first day on the job. Leaving this field incomplete or blank can be a giant red flag in an audit because it is the benchmark for which much of the subsequent deadlines are measured against.

Accepting Unacceptable or Fraudulent Documents

The Form I-9 requires an employee to present the employer with documents for identification and work authorization purposes. The form clearly states that documents from List A, List B, and List C may be appropriate depending on each employee’s unique circumstances.

Beyond that, employers are also required to verify the authenticity of those documents in good faith and to the best of their ability. Should an audit reveal that fraudulent documents were used, knowingly or unknowingly, it can result in serious consequences.

Misplacing Completed Forms

All employers are required to have a completed Form I-9 on file for every employee. These forms should be easily accessible in the event that a government agency requests them, in which employers have three days to produce them. If it is discovered in an audit that a Form I-9 has been misplaced, the error can be considered a compliance violation.

In an effort to remain I-9 compliant, it is important for businesses to be proactive in learning about the top errors people make on I-9s and prevent making those same mistakes. Additionally, an electronic I-9 tool can reduce errors, significantly reduce the burden of tracking expiration dates, and significantly increase compliance.

Small Business and I-9 Compliance

Businesses nationwide have been expected to complete a Form I-9 for employees to ensure their eligibility to work in the U.S. since the Immigration Reform and Control Act of 1986 has been in place. While this can be a bigger undertaking for larger businesses of one hundred or more employees, federal law still requires that small businesses follow the same rules to be I-9 compliant. In reality, the stakes can be even higher for small businesses found to be non-compliant. For this reason, more small businesses are turning to digital I-9 compliance software to help make the process more effective and reliable, from start to finish. Businesses with a defined process and ownership and who regularly track and proactively review their I-9s are best positioned to steer clear of penalties and fines during an I-9 audit.

Common I-9 Compliance Roadblocks for Small Businesses

The Form I-9 can appear unassuming, after all it is just a form. However, the amount of data required, combined with the varied guidelines and deadlines for each section, especially Section 2 of the form, can make it complicated and sometimes confusing. And some complications can yield mistakes that can negatively impact a business, and the need to avoid common I-9 compliance roadblocks like these becomes critical. Here are some of the most common mistakes small businesses often make:

Innocent mistakes.

Through the eyes of an ICE Auditor, a mistake is a mistake, whether it is innocent or not. An error can range from accidentally transposing a couple of numbers to unintentionally leaving a field blank to forgetting to add a signature where designated.

Missed deadlines.

All three sections of a Form I-9 have distinct deadlines for completion. Should a section not be finished within the assigned window of time, it may be considered a violation, which could result in a penalty.

Incomplete recording of the Identification & Work Authorization documents.

If an employer is not diligent in collecting and recording all of the appropriate documents required on the Form I-9, it will affect compliance and be considered a violation.

Not Tracking of Expired Document.

Some of the work authorization documents expire and require follow up from time to time to collect new valid information. For example, an employee who is authorized to work under an temporary status such as a H-1b, L-1a/b visa or one who holds an Employment Authorization Document (EAD) all have expiring work authorization dates. It is the employer’s responsibility to be aware of upcoming documents set to expire and to contact the employee well in advance of the expiration date so to obtain updated proof of eligibility to work before those documents expire.

Retention Management.

Employers are required by law to maintain for inspection the original Forms I-9 for all current employees. In the case of former employees, retention of Forms I-9 are required for a period of at least three years from the date of hire or for one year after the employee is no longer employed, whichever is longer.

How I-9 Violations Can Spell Big Problems for Small Businesses

The consequences of being found non-compliant during an audit on one or more counts may spell big problems for small businesses. Violations are normally categorized into one of these two categories:

  1. Civil. This is typically due to not being compliant via employment verification, document fraud or abuse, discrimination, etc.
  2. Criminal. These violations can be more serious and are generally due to documented patterns of hiring, referring, or conducting fee-based recruiting of individuals unauthorized to work in the United States.

Fines and penalties can be crippling to the bottom line. Auditors typically apply a fine per violation. That can potentially mean multiple violations for just one employee. If those violations appear in more than one employee Form I-9, the hefty fines and penalties associated can add up quickly. For example, penalties for substantive violations, which includes failing to produce a Form I-9, range from $230 to $2,292 per violation. Where as monetary penalties for an employer who knowingly employs and continues to employ unauthorized workers could face violations range up to $20k per violation. ICE considers five factors: the size of the business, good faith effort to comply, seriousness of violation, whether the violation involved unauthorized workers, and history of previous violations. In a worse case scenario a company can lose their license to operate temporarily or indefinitely if found non-compliant.

If a company receives a Notice of Inspection (NOI) from U.S. Immigrations and Customs Enforcement “ICE” employers they should contact their legal counsel immediately for advice. ICE will provide the company with at least three business days to produce the Forms I-9. Often, ICE will also request other supporting documentation, such as a copy of the payroll, list of current employees, Articles of Incorporation, and business licenses.

Why Small Businesses Can Benefit from Using Digital I-9 Compliance Software

Because a small business often has less management positions to assist with new hires and handling the employment on-boarding process and paperwork, additional resources such as digital I-9 compliance software is extremely helpful. Some of the ways that compliance software can be beneficial to a small business include:

  • Minimization of common mistakes due to errors such as blank fields or missing signatures, reducing a companies risks for violations
  • Assistance with tracking the hiring process progression with notifications for upcoming deadlines
  • Provides additional oversight of the employment verification, reverification, and document retention stages
  • Notifications sent regarding upcoming document expiration dates
  • Integration between the electronic Form I-9 and the government’s E-Verify web services saves time, costs and further reduces opportunity for error and non-compliance liabilities
  • Centralized management reports to track omissions, actions and overall program’s compliance

When it comes to small businesses and I-9 compliance, there is no leniency in federal laws regarding ensuring that employees are eligible to work in the United States. Do not carry this weight on your shoulders alone or unnecessarily risk your company’s compliance. Enlist the help of a vendor who can implement a digital I-9 compliance software today and bask in the peace of mind it can offer.

2021 E-Verify Mandates

All employers need to be aware of the revised 2021 E-Verify mandates to ensure compliance, especially if operating across state lines. Requirements are changing frequently and penalties for non-compliance can include monetary fines per violation and denial, suspension, or revocation of an employer’s business license. While not every U.S. employer is required to use the E-Verify program, it is critical that employers educate themselves on how the program works and if it is mandatory in their state(s) of operation.

How E-Verify Works

E-Verify is a government sponsored web-based program which is designed to compare information gathered from an employee when completing the Form I-9 against other federal agency databases, such as the U.S. Department of Homeland Security (DHS) and the Social Security Administration (SSA). This quick database comparison can produce results in as little as three to five seconds. At the time of its rollout, E-Verify was largely a voluntary program, however, it has grown in popularity as it is widely considered an added layer of protection for employers in verifying an employee’s identity and work eligibility in the U.S. However, employers should note that the E-Verify program will not perform a criminal background check on their employees. Separate operational processes should be in place to handle this review.

Who Do the New 2021 E-Verify Mandates Apply To?

As of 2021, the list of states and their mandates for the E-Verify program continues to grow. The new changes can be broken down as follows:

States requiring at least some employers to use the E-Verify program:

  • Alabama
  • Arizona
  • Georgia
  • Mississippi
  • North Carolina
  • South Carolina
  • Tennessee
  • Utah

State contractors only are mandated to use E-Verify in:

  • Colorado
  • Louisiana
  • Minnesota

States where E-Verify requirements exist for local municipalities:

  • Michigan
  • New York
  • Oregon
  • Washington

Public employers only are required to use E-Verify in:

  • Idaho
  • Virginia

Contractors and/or public employers working with the state must use E-Verify in:

  • Florida
  • Indiana
  • Missouri
  • Nebraska
  • Oklahoma
  • Pennsylvania
  • Texas

As is illustrated above, E-Verify requirements can vary widely from one state to another and often are based on the number of people employed within a business. When operating across state lines, it is a good practice to implement the E-Verify process across all business locations, even if it is not required by the law to ensure consistency for all work sites and to avoid the appearance of discriminatory employment practices.

E-Verify Is Not Yet Mandatory for All Employers

For many, E-Verify use is not mandatory, unless a company is:

  • Ordered to use E-Verify per an official legal ruling
  • Operating in a state that requires employers to participate
  • Participating in federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause

Although E-Verify may not be required for all businesses, companies located  in the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of Northern Marina Islands are eligible to use the program.

Enrolling in E-Verify

There are a few different options for enrolling in E-Verify which include Employer Access, E-Verify Employer Agent Access, and Corporate Administrator Access.

The E-Verify enrollment and onboarding process may include signing a program agreement and participating in mandatory web training to ensure maximum understanding and effective use of the program. To ensure every step is followed to the letter, new companies enrolling in the program are encouraged to visit the E-Verify website for additional information and an instructional webinar.

Digital I-9 Compliance Software is a Valuable Resource for E-Verify

When it comes to E-Verify, many businesses are increasingly turning to the use of digital I-9 compliance software for help in streamlining the process. This can be particularly critical as much of the input used for the Form I-9 is used to create an E-Verify record for each employee at the time of hire, reducing the need for retyping information into E-Verify and therefore lowering the risk of making errors. In addition, reliable I-9 compliance software can send E-Verify alerts of required employer actions and track the status on any cases that may be left open or unresolved in the system.

Review the new 2021 E-Verify mandates in detail and consider implementing digital I-9 compliance software to ensure you are effectively managing your compliance requirements and minimizing your company’s liabilities.

E-Verify Tentative Nonconfirmation (TNC) Action Enforcement

In October of 2020, the United States Citizenship and Immigration Services (USCIS) announced it would be enforcing the existing rule for employers to take action within ten federal government working days of receiving a Tentative Nonconfirmation (TNC) for an employee. Prior to this announcement, USCIS guidance urged employers to generally take action as soon as possible upon receipt of a TNC and was not specific. If you are currently enrolled in E-Verify, you have likely received one of these E-Verify e-mail notices by now, which can be quite startling. This communication is a gentle reminder of the new focus on enforcement and the employers wake up call to take intentional action.

The October announcement has many employers wondering why the sudden increase in enforcement. Essentially, USCIS was seeing a large number of open TNC cases, which likely indicated that:

  1. E-Verify users are not referring cases to government agencies when an employee contests to resolve a TNC
  2. E-Verify users are not closing a case if an employee chooses not to contest the TNC

The bottom line here is that when an E-Verify user fails to take their responsibilities for E-Verify actions they are at risk of receiving a violation which can negatively impact their compliance. In some cases it could even be possible that the employer’s E-Verify account could be terminated, rendering the business unable to operate.

Employers using E-Verify have the duty of care to ensure those in the organization who are responsible for this oversight truly understand the requirements of the program, grounds for TNCs, and how to resolve these E-Verify notices within the ten-day deadline in order to stay compliant. Completing the TNC process strengthens E-Verify program and helps ensure employers close E-Verify cases according to program requirements. Unfamiliar with E-Verify? See more about the program below.

What Is an E-Verify Tentative Nonconfirmation (TNC)?

A TNC typically means that the information input into the E-Verify system by an employer does not match government agency records from the Department of Homeland Security (DHS) or the Social Security Administration (SSA).

An employer could receive a TNC notification from DHS or SSA for one or more of the following reasons:

  • Information not entered correctly by the employee or employer, including transposed or mismatched numbers, incorrect dates or misspelling of employee’s first or last name
  • Unreported name changes by the employee
  • Immigration or citizenship status change
  • Unverifiable passport or identity information such as a driver’s license or state ID card
  • Photo match issue
  • DHS record such as an Alien number, I-94 number and/or foreign passport number is incorrect

Actions Required for a TNC

It is worth noting that the ten-day window is not dedicated to resolving the TNC issue, rather it simply mandates that an employer either declare in the E-Verify system that an employee is contesting the TNC or otherwise close the individual’s case after then ten-day period has passed if they have received no decision from the employee.

According to E-Verify’s website, the proper steps to take upon receiving notification of a TNC are:

  • Further Action Notice. The employer must alert the employee in question of the TNC via a printed copy of the Further Action Notice. This notice gives the employer information about how to properly notify an employee about a TNC and additional information about the TNC itself.
  • Employee Decision. The employee must make a decision about contesting the TNC within the ten federal government working day period as properly indicated on the Further Action Notice. If an employer does not receive a decision by the end of the tenth day or if the employee confirms they will NOT contest the TNC, the employer may close that individual’s E-Verify case and end the employee’s employment.
  • Employee Contest. If an employee wishes to contest a TNC, the employer should update E-Verify with a referral date which sets the ten-day window and provides a specific date by which the employee must visit either a Department of Homeland Security or a Social Security Administration office. The type of TNC declared will dictate which type of office the employee should visit. It is critical to note that during the TNC period where the employee has confirmed that they will take the requisite action on the TNC, the employer may NOT take any adverse action (terminate, suspend, withhold or lower pay, etc).
  • Visit DHS or SSA Office. The employee promptly acts to resolve the mismatch issue. An employee should visit the DHS or SSA as soon as possible. If the employee does not act to resolve the TNC issue within ten working days of that employee referral, E-Verify may change the employee’s case status to E-Verify Final Nonconfirmation, after which an employer may terminate the employee.
  • Update E-Verify case. As appropriate, after a quick compare against other government databases, the employee’s E-Verify record will be electronically updated with a final conclusion either after a mismatch is resolved or no action is taken.
  • Employer closes E-Verify case. Whether it is due to not receiving a decision about contesting the TNC from an employee in the given time period or because E-Verify issued a Final Nonconfirmation, an employer will need to close the E-Verify case.

About E-Verify

E-Verify is an internet-based program available to employers to confirm the eligibility of their employees to work within the United States.

The information input into E-Verify are the same personal details collected on the Form I-9, which employees are federally mandated to complete on the first day of employment. Once entered the data is compared against records from government agencies to ensure identity and employment eligibility of an employee. Here is a comparison between Form I-9 and E-Verify:

Form I-9

Mandatory for all new hires

Does NOT require the employee to include a Social Security number

Does not require a photo on the identify documents (List B of the Form I-9)

Must be used to reverify expired employment authorization

E-Verify

Is voluntary for most employers*

Requires the employee to include a Social Security number

Requires a photo on identity documents (List B)

MAY NOT be used to reverify expired employment authorization

*E-Verify enrollment is voluntary for an employer unless they fall into one of the following categories:

  1. The employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause
  2. The employer has operation in a state where legislation requires it
  3. The employer has been provided an official legal ruling

More information about the E-Verify program can be found on the E-Verify website.

E-Verify Rolls Out New myUploads Feature

Resolving a U.S. Department of Homeland Security E-Verify Tentative Nonconfirmations (TNC) may now be a little more convenient as E-Verify announced their roll out of myUploads, a new feature that allows individuals to electronically upload images of required employment verification documents. The timing for myUploads is particularly a relief, given the October 2020 announcement by United States Citizenship and Immigration Services (USCIS) that they would be more diligent in enforcing their 10-day rule for employers to take appropriate action upon receipt of an E-Verify Tentative Nonconfirmation (TNC) notice.

How E-Verify Rolling out myUploads May Help

For many employees and employers the deadline of ten federal government working days can be incredibly stressful. However, E-Verify’s rollout of myUploads may help alleviate some of that stress.

This free, new feature allows individuals to electronically upload pictures of their documentation using a smart device or personal computer in an effort to quickly resolve E-Verify or Self Check DHS Tentative Nonconfirmations.

The convenience does not change the first part of the TNC process in which an employer must notify the employee of their receipt of a TNC. It is recommended that this be done discreetly, and that the employer provide the individual with a Further Action Notice (FAN) which can be instrumental in explaining the entire TNC process and provides E-Verify’s myUploads instructions.

If you have questions or concerns regarding the E-Verify program, TNCs, or the new myUploads feature, it is critical to an employer’s compliance status to review the details on E-Verify or to reach out to E-Verify directly for clarification as soon as possible.

What Is E-Verify?

Although this federal program is not currently required for every business in the nation, many employers choose to utilize this free web-based program to assist them with confirming the eligibility of employees to work in the United States.

Upon hiring, employers are required to have a Form I-9 completed for each employee. The purpose of this form as defined by the 1986 Immigration Reform and Control Act is to gather personal information and documentation from employees to help confirm their identity and eligibility to work in the U.S.

As an added layer of work authorization security, the E-Verify program is often used. Employers can open a case for an employee with information from their Form I-9. Then federal agencies such as the Social Security Administration and the Department of Homeland Security will compare that data with data of their own to further validate an employee’s work eligibility.

Currently E-Verify is available to employers and employees in all fifty U.S. states, as well as several other U.S. jurisdictions such as The District of Columbia, Puerto Rico, and the U.S. Virgin Islands to name just a few. Participation in the program is largely voluntary, unless:

  • An employer’s state legislation requires E-Verify to be used
  • An employer must use E-Verify due to an official legal ruling
  • An employer has federal contracts or subcontracts containing the Federal Acquisition Regulation (FAR) E-Verify clause

Companies with questions about whether their business is required to use E-Verify should visit the program’s website for more information.

Tentative Nonconfirmation Basics

In E-Verify terms, a Tentative Nonconfirmation or TNC is a sign that the data put into the E-Verify system does not match information on file with the government agencies of Department of Homeland Security or the Social Security Administration.

While receiving a TNC can be unsettling, there can be a number of reasons for this notice, some of which are rather benign but still require action. Among the most common situations resulting in a Tentative Nonconfirmation are:

  • Employee’s name that has not been reported to government agencies such as SSA
  • Information that contains transposed numbers
  • Incorrect information about an employee such as a wrong birth date
  • Immigration status that has not been updated
  • Citizenship status that has not been updated
  • Unverifiable identity or passport data
  • Photos that do not match

If an employer receives a TNC regarding an employee’s E-Verify case, they are required to alert the employee of the issue via a printed copy of the Further Action Notice and task them with resolving it by visiting the DHS or SSA within a specified timeframe. There are two common scenarios:

  1. The employee takes action with the SSA or DHS (whichever is applicable) to resolve the TNC
  2. The employee takes no action at all within the ten-day window set forth by USCIS

If an employee does not take action in the ten-day timeframe, an employer can label the case as Final Nonconfirmation (FNC), mark the case “Closed” in E-Verify and then terminate the employee.