How Do You Fill Out an I-9 Form

One of the most frequently asked questions of employers and employees alike is, “How do you fill out an I-9 form?” The question does not yield a short answer, but by learning more about the I-9 form and resources available to help with the form’s completion, the process of filling out the form can be both manageable and efficient.

 

What is an I-9 form?

Before learning how to fill out the Form I-9, it is helpful to know its origins and understand why it is important. The Form I-9 is a byproduct of the Immigration Reform and Control Act passed in 1986. This form was essentially designed by the federal government to verify an individual’s identity and eligibility to work within the United States.

 

Are employees required to fill out the Form I-9?

It is the law for employers to have employees complete a Form I-9. All employees working in the United States are required to fill out a Form I-9 to prove eligibility authorization. As soon as an employer offers a job to an individual, the employee can begin filling out the Form I-9. The employer is responsible for getting the form to the employee and ensuring that the individual properly completes it within the form’s allotted deadlines.

 

How can I get a Form I-9?

Many employers may already have a blank Form I-9 on hand, but it can also generally be found online at the website for the United States Citizenship and Immigration Services (USCIS) and may be downloaded to your computer.

 

How do you fill out an I-9 form?

The Form I-9 is comprised of three main sections. Each section requires a different set of information or documentation and has a unique deadline. In order to be compliant, employers must ensure that all three sections are completed properly and on time.

Section 1

The first section of the Form I-9 is generally used for establishing the identity of the employee. For the purpose of this section, employees are typically asked to provide basic information such as:

  • Full name
  • Birth date
  • Contact information
  • Social Security number

In addition to confirming the employee’s identity, this first section of the form is also designed to confirm the employee’s legal eligibility to work in the United States by proving:

  • Citizenship
  • Status of nonresident national of the United States
  • Lawful permanent residency
  • Authorization as an alien to work in the United States

As dictated by the form, this section must be completed by the employee’s first day of employment.

Section 2

Much of the second section of the form is the employer’s responsibility, and it involves the employee’s documentation. The Form I-9 has three lists of documents that are approved to use for this section:

  • List A Documents: The approved documents on this list generally establish an employee’s identity and employment authorization.
  • List B Documents: The approved documents on List B are used for establishing the identity of an employee. If an employee uses a document from List B, presenting a document from List C is also typically required.
  • List C Documents: The documents on this list are used to establish an employee’s work authorization in the United States. If presenting a document from List C, an approved document from List B is also usually required.

This section of the I-9 Form must be completed within three business days of the employee’s first day of employment. Employers are required to examine each document in good faith for authenticity. It is worth noting that perjury penalties can be assigned for knowingly presenting fraudulent documents.

Section 3

This last section of the form comes into play if an employee has a name change, a renewal of an expiring work authorization, or is a rehire within three years of the date on the original Form I-9. Employers are largely responsible for section three.

 

Additional Resources for Filling Out An I-9 Form

Employers who have specific questions about the Form I-9, questions about how to fill out an I-9 form, or the corresponding deadlines may wish to seek out additional resources to facilitate the process.

The United States Citizenship and Immigration Services Handbook for Employers M-274 may be a good resource for employers. The manual is rather extensive and can typically be downloaded and printed for reference.

A user-friendly option that many employers are increasingly turning to is digital I-9 compliance software.  These software programs are created to guide employers through each step of how to fill out an I-9 form and help minimize common human errors made on the form. Reputable software programs should also be able to interface with the E-Verify program.

 

How Compliance Software Can Make Filling Out I-9 Forms Easier

Digital I-9 compliance software can provide an extra layer of protection and peace of mind for employers. It is specifically designed to be user-friendly, detail oriented, efficient, and can be particularly useful for employers with multiple office locations.

Some of the benefits of working with digital I-9 compliance software can include:

  • A digital and paperless solution
  • Minimization of commonly made human errors such as blank fields, incomplete fields, and missing signatures
  • Printable checklists for employees and employers to facilitate the Form I-9 process
  • Time-sensitive reminders regarding the deadlines of each section of the form
  • Document tracking to allow employers to update Form I-9 documents before they expire and become a roadblock to compliance
  • Document archiving reminders
  • Centralized reporting for audits

 

By enlisting the help of resources such as digital I-9 compliance software, learning how to fill out an I-9 form can be less stressful for employers and employees.

Q: Do all employees have to fill out a Form I-9 for employers?

A:  Yes, they do.

Q: Is there a program that helps fill out an I-9 form?

A:  Yes, employers may want to consider purchasing digital I-9 compliance software.

Q: Can you fill out an I-9 form electronically?

A:  Digital I-9 compliance software digitizes the Form I-9.

Q: Can the I-9 Form be completed before an employee starts work?

A:  Yes, as long as the employer has extended a job offer.

Q: What happens if an employer doesn’t have an I-9 form for an employee?

A:  The employer can be found not compliant and may be subject to punitive consequences.

I-9 Compliance For Mass Hires

While the spread of the coronavirus is causing some of the highest unemployment rates the nation has seen in years, many essential industries such as grocery retail, delivery services, and pharmacies are ramping up their hiring processes to accommodate the fast onboarding of staff. However, even in this time of crisis, companies must still maintain I-9 compliance for mass hires.

In addition to the increased pace of hiring which can be taxing for human resources departments, employers are now struggling to manage the Form I-9 process with some small changes brought about by these unprecedented times amidst the coronavirus pandemic. If your company is onboarding employees now, it is crucial to be familiar with the I-9 compliance process to protect yourself against future violations.

 

The Most Common Challenges for I-9 Compliance for Mass Hires

Even though some local offices of a company may be actively working, their corporate offices could be working remotely, which can be tricky when it comes to completing a hire that is Form I-9 compliant.  Some of the most common challenges for I-9 compliance for mass hires during coronavirus can include the ability for:

  • Employees and employers to fill out the Form I-9, specifically sections two and three
  • Employees to present employment authorization documents in person, face to face
  • Employers to review authorization documents in person for authenticity

 

Temporary Guidelines For Companies Operating Remotely That Wish To Hire

If an entire company’s workforce is working remotely during this difficult time, as of April 2020, they may have some flexibility regarding the inspection of authorization documents. It may be possible to virtually examine an employee’s authorization documents via fax, web-based conferencing, or a video call and consider them valid if:

  • The entire company is working remotely
  • The remote work policy is documented in house and with the Department of Homeland Security
  • The virtual method of inspection is documented on the Form I-9, specifically on sections two and three
  • A proper in person review of the employee’s authorization documents is done within three days following the expiration of the COVID-19 national emergency and is documented as such

As of April 2020, the virtual review of employment authorization documents is valid only until May 19, 2020 or three days after the national emergency is lifted. It is important to note that the coronavirus national emergency is a somewhat fluid situation, so it is crucial for employers to be certain what the hiring rules are at the time of hire to prevent being assigned noncompliance violations at a later date.

 

 

Temporary Guidelines For Companies Still Operating Regularly In Part That Wish To Hire

The rules are somewhat different for companies that are still operational, in part, with open offices.  While these companies may have flexibility in terms of selecting third-party authorized representatives to review an employee’s authorization documents, documents may not be reviewed virtually.

As of April 2020, employers that have at least one open office must still present employee authorization documents in person. However, an employer may temporarily be allowed to designate a third-party as an official authorized representative to review authorization documents and complete the Form I-9 in person.

Employers should be aware that federal and state guidelines regarding third-party designations may be different. For example, while a federal guideline may allow for a third-party to be designated as seen fit, some states require the third-party to have additional qualifications such as being a public notary.

 

I-9 Compliance Consequences

Despite the unique hiring challenges businesses across the nation are currently facing, the hiring process is to be taken seriously. Hiring companies may still be held liable for I-9 compliance violations made during the coronavirus pandemic, even those committed by a designated third-party.

 

Reducing Compliance Risks For Employers Amidst The Coronavirus Pandemic

While the need may be extreme for many companies to do mass hires to effectively serve the public, they are and will be held to federal I-9 compliance standards. To help combat possible overwhelming pressure on an employer’s human resources department during an already chaotic time, it may be worth enlisting the help of a compliance professional.

Lookout Services has more than twenty years of experience in assisting employers with onboarding employees in regard to proper I-9 compliance. In addition to their professional and knowledgeable staff, Lookout Services also offers digital I-9 compliance software which features the following:

  • Checklists for employees so they can review, in advance, the items needed to complete a Form I-9
  • Checklists for employers to keep each new employee on task in completing the Form I-9
  • A paperless, digital solution
  • Form deadline alerts for employers
  • Minimization of common Form I-9 errors such as blank spaces, incomplete fields, and missing signatures
  • The ability to track expiring documents and alert employers accordingly before it becomes a compliance issue
  • Assistance with document archiving
  • Centralized reporting
  • An optional interface with the federal E-Verify program complete with auto-population of E-Verify fields
  • Audit assistance such as mass prints of I-9 records and attachments

 

Don’t let a hasty mass hiring process put your company at risk for punitive consequences down the line. Consider a consultation with Lookout Services today to keep your company I-9 compliant through the pandemic and beyond.

How To Stay I-9 Compliant During Pandemic Related Closures

Employers that are hiring in the midst of these uncertain times are struggling with how to stay I-9 compliant during pandemic related closures. Many of these closures are affecting the validity of employee authorization documents and how employers can document special COVID-19 document extensions. By enlisting the help of a company that provides professional I-9 compliance guidance, employers may be better able to navigate the winding road ahead.

 

COVID-19 Temporary Guidelines For Hiring

As some companies continue to hire employees during these pandemic related closures, staying I-9 compliant is proving to be a challenge. To make things even more confusing there can be subtle differences on compliance rules depending on if a company’s entire workforce is working remotely or if at least some of their locations are physically open.

For companies that are entirely working remotely during the pandemic as of April 2020, there are some allowances being made for the virtual inspection of employee authorization documents through platforms such as web-based conferencing, fax, or virtual calls. To be eligible to do so, companies must do the following:

  • Have the entire workforce work remotely
  • Document the remote work policy with the Department of Homeland Security
  • Document the method of virtual inspection on the Form I-9 in sections two and three
  • Review tangible employee authorization documents in person within three days following the expiration of the end of the COVID-19 national emergency (or May 19, 2020) and then properly document this action

Companies that have at least some locations operating as normal, do not have the luxury of virtually inspecting employee authorization documents. However, they may be allowed to have a third-party act as an official authorized representative in reviewing authorization documents. Employers should note that some states may have more stringent rules on third-party designations than the national guidelines.

Whether employers are working remotely or have some physical locations open, it is crucial that they frequently check on government policy during this time of unprecedented change.

 

DMV Closures Affecting Employees Completing I-9 Forms

In this time of national business closures due to the coronavirus pandemic, many states have Department of Motor Vehicles (DMV) that are either closed or offering only limited services.

Unfortunately, this can have an unwelcome trickledown effect on employees attempting to successfully complete a Form I-9 for their employer. The primary problem with limited or no DMV services is that employees may have no other choice but to use an expired driver’s license as a form of identification on an I-9.

To help combat this issue, some states are extending the expiration date of state IDs and/or driver’s licenses.  While helpful, this presents a challenge for employers on how to document this unusual and temporary extension. The following steps may be helpful in this case:

  1. For employees with a driver’s license or state ID that is expired on or after March 1, 2020 in a state that has extended document expiration dates due to COVID-19, these forms of identification may still be acceptable as a List B document.
  2. To protect against I-9 violations, employers must document the acceptance of these documents in Section 2 of the form and enter the term COVID-19 EXT in the Additional Information Field.
  3. For added protection, employers should attach a copy of the DMV’s webpage or other supporting documentation as proof of the document extension.

Employers should check their state’s Motor Vehicle Administration or Department of Motor Vehicle’s website to confirm if they have or have not auto-extended the expiration date of driver’s licenses and state IDs.

 

How DMV Closures or Limited Services May Affect the E-Verify Process

Some companies either voluntarily or by mandate use the federal E-verify system to complement the Form I-9 process. Expired driver’s licenses and state IDs can cause some issues with E-verify as well.

In the case that an employee has an expired driver’s license or state ID that is eligible for an extended expiration date in their state due to COVID-19, employers should enter the actual expiration date of the employee’s document for E-verify purposes.

That said, the coronavirus crisis is causing many standard procedures to be reevaluated on an almost daily basis. Employers should check E-verify’s website daily for frequently asked questions to ensure proper procedure is being followed.

 

How Professional I-9 Compliance Guidance May Be Helpful

Learning how to stay I-9 compliant during pandemic related closures is just one of many issues that employers currently have on their plates, and it is overwhelming for many. Employers may want to consider enlisting the help of a company who specializes in professional I-9 compliance to assist with lightening their load and helping them stay on top of COVID-19 related compliance issues.

Lookout Services has provided I-9 guidance to employers for more than twenty years and offers digital I-9 compliance software that features the following:

  • A digital solution for I-9 compliance
  • Printable checklists for employees and employers to help keep everyone on task for completing the Form I-9 in advance of section deadlines
  • Time sensitive alerts for employers regarding impending deadlines
  • Minimization of frequently made Form I-9 errors such as incomplete fields, blank fields, and missing signatures
  • Document tracking
  • Document archiving assistance

 

Let Lookout Services assist you in learning how to stay I-9 compliant during pandemic related closures.  Call us to set up a virtual consultation today.

What Documents Are Required for Properly Filling out An I-9 Form?

Businesses nationwide are responsible for verifying each employees’ eligibility to work in the United States. While the concept is simple, the steps to being I9 compliant can be more complex. If a company hopes to be compliant with federal law, it is their duty to familiarize themselves with the Form I-9 procedure and the documents required for the I-9.

What is the Form I-9?

I9 ComplianceSince the passage of the 1986 Immigration Reform and Control Act, the law requires that employers and employees complete the Form I-9. This legal document of just one page consists of three main sections, each with its own deadlines.

Section 1:  Employees must fill out this section by the first day of employment. Employees must accurately and truthfully complete this section, or they can be charged with perjury. Employers should look over the final version of this section to make sure it is complete in its entirety without any blank fields or missing signatures.

Section 2:  This section of the Form I-9 requires that employees provide employers with one or more forms of identification to prove the employee’s eligibility to work in the United States of America. Once these forms of identification are supplied to the company, employers must verify the employee’s work eligibility by authenticating these same documents required for the I-9 within three days of an employee’s start date.

Section 3:  This last part of the form is generally completed by employers only if an employee’s work authorization expires, the employee has a legal name change, or if the employee is rehired within three years of the original date listed on the Form I-9.

When to Retain a Copy of I-9 Support Documents

It may seem like good sense to make and retain copies of important documents that the federal government requires a business to review, but when to retain a copy of I-9 related documents is a tricky question that can quickly send a business afoul of the law if the business isn’t paying close attention.

Immigration and Customs Enforcement has more than quadrupled worksite enforcement investigations in the last year. With the increased enforcement efforts, this is a great time for U.S. businesses to reevaluate the company’s procedures to ensure that it remains in full I-9 compliance. Depending on how the business operates, keeping copies of I-9 supporting documentation may be the right answer – if it is done the right way.  Otherwise, optional document retention could create more problems than are solved.

What Employers Need To Know About I-9 Audits & Work-Site Investigation

With a stronger push for immigration laws to be strictly enforced, American businesses are quickly learning the importance of being Form I-9 compliant. In the last few years, the nation has seen the number of government investigations into I-9 compliance almost quadruple. While a company may not be able to escape a government audit, it can be proactive in ensuring its I-9 compliancy.

The Form I-9 and the Importance of Compliance

The Form I-9 is a legal document that employers in the United States must have their employees complete to determine their eligibility to work in the country. The form is a one-page document that consists of three main sections:

  • Section 1: Employees are responsible for accurately completing this section of the Form I-9 by their first day of employment.
  • Section 2: Employers are responsible for collecting and authenticating required I-9 documents from employees to verify their eligibility for employment within three days of their start date.
  • Section 3: Employers will need to complete this section in the case that an employee’s work authorization expires, their name is legally changed, or they are rehired within three years of the date listed on the Form I-9.

In order for companies to be compliant, each employee’s Form I-9 must be completely filled out and accurate, the required identification documents be acceptable, and timelines and guidelines of all three sections must be observed. While it may sound like a fairly simple process, it can be quite complex and often requires the United States Citizenship and Immigration Services’ Handbook for Employers M-274.  Many companies are also choosing to enlist the help of digital I-9 compliance software as an extra layer of protection and to help streamline the process.

For employers who have a large number of employees and in multiple locations, the process of becoming I-9 compliant becomes even more difficult. One of the primary issues is storage. All forms must be stored properly and be accessible to management and the government in the case of an audit.

While there are many reasons companies need to be I-9 compliant, the primary reason is because it is the law via the 1986 Immigration Reform and Control Act. When a company is found not to be in compliance with Form I-9 protocol, it could be putting its entire operation at risk. It is not uncommon for companies to be issued civil or sometimes criminal penalties for these violations, all of which can result in hefty fines that can impact a company’s bottom line.

However, by understanding what it means to be I-9 compliant, why it is important, and what to expect if your company is audited by the government, you can ensure your company is adequately prepared.

What happens during an ICE worksite investigation or audit?

In the event of an ICE audit, a Notice of Inspection (NOI) is typically provided to an employer. Legally, the employer has three days to provide the agency with its I-9 forms and other forms of documentation such as a business’ Articles of Incorporation, licenses, list of current employees, and even a copy of the payroll.

After the proper forms and documentation have been presented to the government agency, the agency conducts an inspection of the I-9 forms. While it is possible for the agency to grant the company ten days to make appropriate corrections for technical or procedural violations, the company could still be fined for mistakes. These financial penalties can range from several hundred to more than a thousand dollars per violation.

Fines are commonly issued in the case of a criminal violation, which may include a company’s documented pattern of using fee-based recruiting, hiring, or referrals of employees unauthorized to work in the U.S. Unfortunately, punishment can extend beyond fines and may result in debarment by ICE, which can prevent the company from being considered for federal contracts and receiving certain government benefits.

Common Results of an I-9 Worksite Investigation

Once ICE has completed reviewing the I-9 forms and documents, it typically notifies the party that was audited in writing of the outcome. Here are several more common types of notifications and what they mean.

  • Notice of Inspection (NOI) Results: A result by this name generally comes in the form of a letter to the audited party to let the representatives know that the company was found to be compliant. This document can also be referred to as a compliance letter.
  • Notice of Discrepancies: This result lets an employer know that there was some difficulty determining an employee(s)’ work eligibility based on the paperwork submitted by the employer. The employer is then expected to share that notice with the employee so it can present additional documentation, if available, to establish eligibility to work.
  • Notice of Suspect Documents: An audit result by this name is a step down from the previous two results. This type of notification lets the audited party know that ICE has found an employee that is unauthorized to work, and that civil and criminal penalties could ensue. That said, ICE generally gives both the employee and employer a chance to present additional documentation that proves the employee’s eligibility to work if the audited party or employee deem the finding to be an error.
  • Warning Notice: This audit result can mean that some substantive verification violations were found, but may not warrant a fine due to the expectation of an employer’s future compliance.
  • Notice of Technical or Procedural Failures: This notification makes an employer aware of technical violations that were found. The employer then has ten business days to correct the forms with uncorrected technical and procedural failures being subject to fines.
  • Notice of Intent to Fine (NIF): This type of notification generally equals dollar signs. A notice of intent to fine can mean that an employer may be issued a fine due to violations related to substantive, uncorrected technical errors, knowingly hiring, and continuing employment of unauthorized workers.

How Digital I-9 Compliancy Software Can Help

Digital I-9 compliance software is quickly becoming the wave of the future. Companies are turning to this resource to help them stay I-9 compliant. In general, the software helps minimize human error and provides timely reminders for action items employers must complete to stay compliant.

Compliancy software provides employers and employees with a basic checklist of information needed to complete the Form I-9. This helps employees prepare ahead of time and gives employers a visual reminder of what is completed and what still needs attention.

One of the most user-friendly features of compliance software is the alerts. The program should catch blank or incomplete fields and missing signatures. Any of these things could cause a company to be found non-compliant, but the software program helps to find these inconsistencies and draw an employer’s attention to them before submitting the form. The program should also assist in tracking expired Form I-9 documents, so employers are able to work with the employee to attain updated documents before they become a compliancy issue.

Another benefit of implementing I-9 compliancy software is that it offers document archiving and centralized reporting. Less paper is required when forms and required documents are digitized, and it also helps the program track which forms need to be retained and which do not. Centralized reporting allows employers to provide requested I-9 information quickly and efficiently in the case of government audits. As an added bonus, centralized reporting can be utilized at any point by management, which can help them stay proactive about their company’s I-9 protocol.

With thorough understanding of the Form I-9, its guidelines and regulations, and possibly the assistance of digital I-9 compliancy software, employers can have more peace of mind about being proactive and keeping the company in good standing with the government.

Worksite Enforcement of I-9 Laws

With immigration continuing to be a focus in the U.S., worksite enforcement of I-9 laws is something business owners should pay attention to. Immigration and Customs Enforcement (ICE) agents have ramped up scrutiny of Employment Eligibility Verification form (I-9) procedures, and the results have been eye-opening. In a single year, ICE has more than quadrupled the number of investigations:

Evolution of US Immigration Policy and the Form I9

A Reminder of Why We Do What We Do

It’s easy to fall into a mode of merely complying with the details of the regulations that shape the slices of the world we inhabit, but a look at how the I-9 culture evolved can remind us that it isn’t just busy work the government imposes upon us. Government is by habit and nature reactive, so the current version of the Employment Eligibility Verification form (I-9) is the latest iteration resulting from a series of events leading up to a form that serves an interest. Understanding its history can be instructive in showing us that collection and maintenance of this data is an expression of modern societal values, regardless of whether they are right or wrong.

A Little History On The I-9 Form

The founding fathers of the United States promoted a policy of open immigration, inviting all to our shores to seek their fortunes. The restrictions in those early days were placed on naturalization—you could come here to work, but you couldn’t vote or hold office unless you became a citizen. This was the general attitude until after the Civil War, and today, an enduring legacy of that policy is the Constitution’s requirement that a president must be born in the U.S.

In 1921, Congress developed the National Origins Formula which used the numbers of foreign-born residents from the 1910 census to establish proportional quotas by country for future immigration. The reference census shifted over the years to support the values of the day, but immigration was essentially frozen during the Depression. The Immigration and Nationality Act of 1952 mainly changed the quotas yet again, but the 1965 amendments to that law abolished the national origins system altogether and focused priorities instead on immigrants with skills our workforce needed.

1986 brought us to the foundation of current policy with the bipartisan passage of the Immigration Reform and Control Act which, for the first time, created penalties for knowingly hiring undocumented workers. The idea was to preserve the American tradition of legal immigration while putting a stop to the illegal variety. The fear of terrorism generated legislation in 1996 that would vastly increase the number of deportations for criminal activity, and then 9/11 happened, perpetrated by 20 foreign terrorists who had entered the country legally.

The attacks altered the thinking in a lot of areas, but Congress has yet to agree on a path to immigration reform. Instead, it created the Department of Homeland Security (DHS) to, in part, oversee immigration through three newly formed agencies: US Customs and Border Protection, Immigration and Customs Enforcement (ICE) and US Citizenship and Immigration Services (USCIS). USCIS is responsible for documenting alien employment authorization (the I-9) and running the E-Verify program, while ICE is responsible for enforcing I-9 compliance. Other divisions within DHS are meant to ensure that these provisions are not applied by businesses or the government in a discriminatory manner.

The introduction and reintroductions of the DREAM Act over time have, however, produced an unofficial consensus that undocumented immigrants who graduate from American high schools and attend college or join the military should be granted a path to citizenship. President Obama bolstered this value with executive orders effectively delaying the deportation of such people.

Immigrant visas are still limited, but immigrants generally become eligible for citizenship after five years of legal residence unless they were admitted through temporary work permit or student visa, neither of which provides a path to citizenship. Illegal immigration peaked at over one million in 2000 but is thought to have declined by half by 2009.

So Where Does that Leave Us?

Employment in the US is considered the magnet that draws illegal immigrants, so the theory is that they will not come if they cannot work. Employer sanctions are therefore designed to make cheaper labor less attractive than compliance. This paradigm forms the basis for the regulatory plan that resulted in the I-9. By making employers liable for hiring undocumented workers, fear of punishment for noncompliance is what prevents these workers from attaining the financial means to remain in this country, and, the government hopes, deters others from entering illegally.

The I-9 form requires the employer to scrutinize the prospective employee’s identity papers. Employers need to check for two things: (1) to verify that this person reasonably appears to be who he or she purports to be and (2) to confirm that he or she can document an immigration or citizenship status that permits eligibility to work in the United States. By requiring that employers do so within three days, the government is ensuring that employers do not let this step fall through the cracks. By requiring a signature, the government is encouraging employers to be thorough in their examination of the presented documents and honest in their assessment under threat of perjury charges. By requiring employers to retain a form containing unexpired documentation for each employee, the government is holding them accountable for ongoing verification that the employee remains eligible to work in the U.S. Employers are, therefore, on the frontlines of executing this policy.

Regardless of an employer’s position on the various issues that make up immigration policy, ICE’s surge in enforcement actions and promise to expand them even further is the reality. The current administration continues to commit unprecedented amounts of resources to enforce existing immigration and employment laws. This means that the government is watching employers closely and won’t hesitate to investigate for any reason. If ever there were a good time to reevaluate I-9 compliance procedures so a business can survive an audit unscathed, it is now.

2019 Primer To the Immigration and I9 Compliance Laws

FY 2018 saw the number of Immigration and Customs Enforcement (ICE) worksite investigations quadruple, so it’s a good time to consider how to be compliant with immigration laws and I-9s in 2019. The federal government is actively seeking companies that employ undocumented workers as a means of rooting out existing illegal immigration and deterring it in the future. The idea is that they will not come if they cannot work, and employers represent the main line of defense. ICE doesn’t need an excuse to check on whether you’re doing your part—agents may knock on your door for any reason.

Every indication is that this surge in enforcement will continue. ICE received over 12% of the Department of Homeland Security’s entire budget for FY 2019, and folded into this budget is funding for 3,312 additional staff to handle the increased caseload. At the same time, E-Verify received $131.9 billion to upgrade systems in preparation for making it mandatory for all businesses across the nation. The pressure isn’t letting up, and all you can do is be prepared when the auditors arrive. It’s a good time to tighten up procedures, and working with a knowledgeable partner to guide you in performing a self-audit is an ideal place to start. A self-audit can identify holes in the I-9 compliance process and give you notice to fill them before it’s too late.

Be Careful Not to Discriminate

The Immigration and Nationality Act of 1965 put an end to government-backed immigration preference for northern and western Europeans. Instead of continuing to set quotas by country, priorities were instead focused on family connections and adding needed skills to the workforce. The relevant provisions in this context, however, relate not only to methods of administering I-9s but also in auditing procedures. The law generally prohibits these types of conduct:

  • Unfair practices in documenting the I-9 and E-Verify;
  • Discrimination in citizenship or immigration status;
  • Discrimination by national origin and
  • Intimidation or retaliation.

When performing a self-audit, an employer may decide to review either all forms or a sample of forms. If the sample option is chosen, the sample must be taken in a neutral and nondiscriminatory manner. Criteria for the sample set must avoid even the perception of discriminatory or retaliatory intent. To accomplish this, do not self-audit based on an employee’s national origin or citizenship status or in retaliation for any reason. Consider the audit’s timing, scope and selective nature as well.

How to Correct I-9 Errors

Section One of the I-9 is always to be filled out by the employee, and an employer may not correct errors found there. Instead, the employee should draw a line through the mistaken information, correct it and initial and date the correction. If someone helps the employee to accomplish this task, that person’s information should appear in the preparer/translator block of the form. If the employee no longer works for the employer, a statement describing the error and why its corrections cannot be made should be attached to the form.

The employer should correct mistakes made in Section Two in the same manner. Mistakes should not be concealed—like with liquid paper—or backdated. If there are too many mistakes to reasonably correct on the original, a new I-9 may be generated as long as the incorrect version is attached and explained.

Miscellaneous Pearls of Self-Audit Wisdom

  • The forms required for eligibility verification change over time, but the important point is which forms were acceptable at the time the I-9 was completed.
  • If a self-audit reveals that a form was never completed or is missing, one should not be backdated. Instead, a form should be immediately completed, and the employer should enter the correct date of employment in Section 2. A statement explaining the error should be attached to the form.
  • If an employer subsequently concludes that the documentation presented by the employee does not appear genuine or accurate, the employer should give the employee the opportunity to provide acceptable substitutes. The simple fact, however, that a photocopy of acceptable documentation is unclear is not sufficient to question it—the employer must have a foundation for skepticism.
  • Simply requiring individual employees to complete new forms (absent a merger or acquisition) when errors are found should be avoided. Without sufficient justification, allegations of discrimination may arise. Exceptions may be made when systemic errors are found in the I-9 process that make deficient forms widespread.
  • It is illegal to knowingly employ an alien who is not authorized to work in the United States, and “knowingly” can be merely inferred in the course of exercising reasonable care. If your audit reveals such an employee, continuing to employ him or her places you outside the bounds of the law.

With each new ICE agent on the payroll, the chance of the agency’s attention falling on you increases. It no longer pays to take a chance with hiring cheaper, undocumented labor or phoning in I-9 procedures. It’s not too late to revise your approach, and a self-audit can give you a chance to solve problems before ICE auditors take an interest. It may not insulate you from all liability, but it will demonstrate good faith.

Purging Your Records

Electronic Form I-9 systems have brought efficiency and ease of oversight to the processing, storing, and purging of Forms I-9 like no paper system could ever hope to do. With paper Form I-9 records they were typically just stored away, rarely revisited, and likely never purged. Electronic I-9’s have made it incredibly simple to maintain proper long term storage of these files.

The reports available to the Program Administrator, when used effectively can help your organization stay ahead of any compliance issues, including retention and purging.

Did you know each time you terminate an I-9, Lookout automatically calculates a retention date for that I-9. You don’t have to determine if you need to keep it for 1 year or 3 years. That is all done for you. But why bother? You might be thinking “better to have it and not need it, than need it and not have it.”

Well, that old adage doesn’t always hold true. If those records are lost or stolen, your organization could potentially be liable for any resulting identity theft. And in an I-9 audit you can be fined for mistakes and errors even on forms that you should have purged.

It is very important that your Program Administrator understand and be trained on all areas of Form I-9 management, including retention and purging.

If you require instruction or assistance on how to perform these tasks in the Lookout system, please contact Customer Support at 713-668-6200 x2. We look forward to the opportunity to assist you in your I-9 processing.