Do you conduct audits on your I-9 forms? Do you have a written policy in place on how to correct deficiencies or errors? It’s important that you do, as having a policy in place before starting to correct errors can ensure you are consistent in your treatment of employees. It can also allow you to answer some of the tougher questions that you may face before there are specific employees involved in the situation. Employers need to get this right to be sure they’re only hiring individuals who are eligibile to work in the U.S.
When you’re thinking about conducting an I-9 audit to correct any errors, answer these questions:
- Which I-9 errors are severe enough to require correction? It is important to have a policy in place.
- Will a new I-9 form be completed or the existing one corrected? There are pros and cons to creating a new form versus correcting the old one. This answer may vary, depending on the error in question.
- How will the need to correct the form be communicated to the employee?
- Who will be responsible for conducting the correction process with the employee? How much training will that person get?
- How much time will the employee receive to present the new documents? What will happen if the employee cannot meet the required time frame for presenting new documents?
When you have these answers, proceed with the audit. If you discover that you need I-9 corrections requiring new or additional documents to be provided by the employee, be sure to fully explain the I-9 audit purpose and procedure to the employee.
“Be very clear in your communications and make sure the employee understands that there’s nothing wrong with their immigration status, there’s nothing wrong with their employment, INS is not investigating them, [etc.]” Valentine A. Brown advised in a recent BLR webinar. The employee needs to understand that you’re simply auditing your records and need to update them.
Give the employee the document list on page 2 of the I-9 form and ask them to bring in the new documents. It is recommended to give them at least 30 days to provide missing documents.
You also need to have a policy in place ahead of time regarding termination of existing employees based upon audit results if the problem cannot be remedied.
When Do You Need New I-9 Forms to Be Completed?
“I really discourage making new I-9 forms unless it’s absolutely necessary.” Brown advised. “For government audit purposes, it is much easier for them to understand what is going on and what happened with that form if you are correcting the initial form rather than making a new one.” If you find problems, be sure to assess whether a new I-9 is truly needed.
That said, here are some cases where you will need a new I-9:
- Re-verifications are always on the current version of the form. Attach the new form to the old.
- If you have a completely unsalvageable form and have to create a new one, keep the old form with the new as well.
- When using E-Verify, a new I-9 is required if the information on the old form is wrong, outdated or if the immigration documents are expired. (The only time this is really an issue is for federal contractors since E-Verify does not require queries on existing employees in other circumstances).
I-9 Forms: Mistakes that Cannot be Corrected
It is important to remember that anything that is late cannot be corrected—in fact, doing so would be a violation as “correcting” it would mean falsifying the date. For example, if the forms were completed after the 3rd day of hire, or the company certification was completed late, you cannot backdate the date on the form.
Using the wrong version of the form also cannot be corrected. Technically this could be corrected by redoing the form with the correct version, but it’s not worthwhile because the new form will be late, which is a worse violation than having the incorrect version.
The other mistake that cannot be corrected is any section one error for a terminated employee.
For more information on correcting I-9 forms, order the webinar recording of “Immigration Work Permits Explained: EAD Cards, I-9s for H, L, and Green Card Holders, and More.” To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Valentine A. Brown, a partner at Duane Morris LLP in Philadelphia, serves as global immigration law counsel to a diverse group of multinational and domestic corporations and their employees. She provides advice, compliance audits, and representation to help navigate the intricacies of U.S. and foreign immigration laws.