The Importance of Fully Completing the I-9 Form

The Importance of Fully Completing the I-9 Form

By Julie A. Pace

*As of 1/31/20, there is a new I-9 Form. Click here for more information.*

Employers must verify that they have a fully complete I-9 for each employee.  ICE has increased I-9 audits to record levels, resulting in hundreds of thousands of dollars in fines.

Employers cannot discriminate against employees on the basis of national origin or citizenship. Companies must walk a fine line between the verification requirements to avoid knowingly hiring or continuing to employ an individual who is not authorized to work in the United States and the prohibition against discrimination. An employer may not circumvent the law by using independent contractors.  Generally, the primary defense to a charge that an employer has hired unauthorized workers is that the employer did not have actual or constructive knowledge of the employee’s unauthorized status.

A few tips to ensure a fully complete I-9:

1. Use the most updated I-9 form. The current I-9 form expired last summer but a new I-9 form should be available soon.  Watch for issuance of the new I-9 form and start using it going forward with any new hires.
2. Section 1 of the Form I-9 must be completed by the employee. The employee must complete, sign, and date this section. The employee must check one of the four boxes regarding citizenship and complete additional information if they are not a citizen or are a non-citizen national of the U.S.
3. The employer must state on the Form I-9 the date that employment begins. The form must be completed after the offer of employment.
4. Employees must complete Section 1 of the Form I-9 on the first day of employment. Employers have up to three business days after the employee’s first day of work to complete Section 2 of the Form I-9.
5. Make sure the employee checks one of the two translator boxes in Section 1.
6. Make sure that the employer representative who signs the I-9 actually reviews, touches, and feels the original unexpired documents and then completes Section 2 of the I-9. Complete all the information needed including title, issuing authority, number, and expiration date, if any.  Do not accept photocopies of documents.
7. Write down one document from List A or one document form List B and C. Do not write documents from List A, B and C, or List A and C as those are violations.  Let the employee choose what documents to present.  Do not ask for specific documents.
8. Do not add extraneous markings or notes to the I-9 Form. Do not use white-out.  Use pen, not pencil to complete the I-9 form.
9. Keep a tickler system for visas that expire and that were listed in Section 2. Employees may not work one day past the date their card expires. Permanent resident alien cards, drivers licenses and US passports must be current when accepted, but do not need to be part of the Company’s tickler system for reverification.
10. Do not keep completed I-9 forms in the regular personnel file. I-9s should be maintained separately and kept under lock and key. Always keep current employees I-9 forms.  Implement retention system for former employees.

After conducting an I-9 inspection, ICE may assess penalties up to $2,292 for missing information per I-9.  Fines quickly add up.  As soon as ICE serves the Notice of inspection, get legal assistance and take the inspection seriously.

ICE also gives a company notices that result in letting some employees go within ten days of receiving the Notice of Suspect document list. Plan ahead for the transition and communications to customers, remaining employees, vendors, and even banks, if your company has a loan.

Employers can lessen the likelihood of litigation and liability by taking the following steps:

• Train specific individuals to handle completion of I-9 Forms and centralize this process. Maintain records of all training provided.
• Conduct a Self-Audit of all I-9 Forms and ensure every employee has a completed Form I-9.
• Each employee should sign a W-9 Form to verify each employee’s social security number.
• Do not pay employees in cash.
• Adopt an immigration and I-9 compliance policy. Discipline employees who violate the policy or take shortcuts with any of the required procedures.
• Make sure the company has a strong anti-harassment, anti-discrimination, and anti-retaliation policy that includes national origin. Do not discriminate based upon the language spoken or employee’s citizenship.
• Develop strategies to respond to identity theft complaints or SSA no-matches. Train your team on how to respond.
• Develop strategies for responding to government investigations, including ICE investigations.