The U.S. Immigration and Customs Enforcement (ICE) just announced it would increase I-9 audits by over 1,000 percent over the next several years. We really mean 1,000. Sadly, the next statement isn’t a typo either: If more than half of a company’s I-9s fail inspection, ICE can assess penalties of $2,156 on each form, even if it’s the same mistake on each one.
Before we get into avoiding the common mistakes, here’s a crash course on I-9s. Under federal law, employers are required to verify employment eligibility for all employees, and to document that information on Form I-9. There are three sections to the form: Section 1 which requests basic identifying information from the employee; Section 2 records information about the documents an employee produces to establish authorization to work; and, Section 3 concerns employees whose work authorization will expire. If an employer gets audited, errors in any one of these sections can lead to fines and possibly criminal prosecution. So what are the most common mistakes employers make?
Mistake 1: The employer completes Section 1 of the I-9
Why this is important: The law is clear that Section 1 of the I-9 must be filled out by the employee on their first day. Section 1 includes basic information like the employee’s full name, date of birth, address, and Social Security number. Employers already have a lot of this from a job application so it can be tempting to just complete Section 1 and get the ball rolling. However, ICE officers look for handwriting differences between Sections 1 and 2, and saving a little bit of time is not worth the potential for a fine. If there is some reason (like a language barrier) that an employee cannot complete Section 1 themselves, an employer can provide some assistance, but then must complete the Preparer and/or Translator Certification block.
Mistake 2: The employer over-documents
Why this is important: The law requires employees to give their employers proof of their identity and authorization to work. Employers are only supposed to collect one List A document (like a passport) or one List B document (like a driver’s license) and one List C document (like a Social Security card). While it may be tempting to cast a wide net and collect as many documents as possible, doing so can lead to a discrimination charge. In this case, it’s quality over quantity. By the same token, an employer may not suggest which document(s) to bring or limit the list that is available on the Form I-9.
Mistake 3: Trying to cover up mistakes
Why this is important: Contained in the 65-page instruction manual for completing the I-9 is the following line: “Do NOT conceal any changes made on the form. Doing so may lead to increased liability under federal immigration law.” So, let’s say an employer discovers an error in Section 1 of the form where the employee writes today’s date instead of their birthday. In that case, ICE instructs employers to sit down with the employee, draw a line through the incorrect information, enter the correct information, and have them initial and date the correction. How about if errors are found in Section 2 or 3? ICE instructs that the employer should enter the correct information as much as possible with their initials and a date and attach a written explanation of what happened on another sheet of paper.