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I Spy Missing I-9s — What Should HR Do?

Looking for I-9 formby Steve Jones

Q: My company recently conducted an I-9 audit and found that we are missing approximately a dozen I-9 forms. I don’t know if they were accidentally purged, filed incorrectly, or never completed. Can we ask the affected employees to fill out another I-9? If so, do we ask them to backdate it or use the current date?

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A: There are two types of I-9 errors: (1) technical and procedural errors and (2) substantive errors. Technical and procedural errors can be corrected. An example is forgetting to record a document title, which can easily be fixed. Fines for technical and procedural errors are discretionary. A substantive error cannot be corrected. If audited, your company will likely face a fine if the statute of limitations has not run. Examples of substantive errors include failing to complete I-9 paperwork or not signing or dating Section 2 of the form.

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Substantive compliance required
In a recent decision, the U.S. Department of Justice’s Chief Administrative Hearing Office noted the difference between technical/procedural violations and substantive errors. The agency explained that the Immigration and Nationality Act (INA) was intended to relieve employers of liability for certain minor and unintentional violations but wouldn’t act as a shield to avoid its basic requirements. When an I-9 form isn’t properly kept or completed, the violation is considered substantive and therefore uncorrectable.

When an I-9 form is lost, destroyed, or not maintained as required by the INA’s retention requirements, the appropriate action is to come into compliance with the law as quickly as possible. If an audit reveals that an I-9 form is missing, you and the affected employee should complete a new form. Doing so doesn’t correct the error, but it does demonstrate a good-faith effort to comply with the law. Good-faith efforts may be considered if penalties are assessed.

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Penalties may be imposed if an investigation reveals a failure to comply with I-9 verification and document retention requirements. The minimum penalty for a first offense is $110; the maximum penalty is $1,100. Penalties are assessed based on several factors, including:

  1. the size of the employer;
  2. any good-faith efforts undertaken by the employer;
  3. the seriousness of the violation;
  4. whether the individual involved is an unauthorized alien; and
  5. any history of previous violations by the employer.

The statute doesn’t require that equal weight be given to each factor, nor does it rule out consideration of additional factors.

It’s important to never backdate an I-9 form. Employers that make false statements or attestations to satisfy the employment eligibility verification requirements may be fined, imprisoned for up to five years, or both. Other federal criminal statutes provide higher penalties in certain fraud cases. If an investigation reveals that an individual knowingly committed or participated in acts relating to document fraud, additional fines may be imposed. For a first offense, the fine starts at $375 and can go as high as $3,200 for each fraudulent document that is the subject of the violation. For subsequent offenses, the fines range from $3,200 to $6,500 for each fraudulent document that is the subject of the violation. “Fraud fines” are imposed in addition to penalties for substantive errors.

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Bottom line
You must always ensure compliance within the appropriate three-day verification period. While substantive violations are not correctable, every effort should be made to ensure good-faith compliance when a discrepancy is uncovered. If a discrepancy is discovered, you are at risk of incurring substantial fines in the event of an audit. Trying to correct an error after the fact by backdating or tampering with incomplete or missing I-9s will only worsen the problem.