Now that you have been working with the new Form I-9 since the beginning of November we thought we’d include an article about some common I-9 compliance pitfalls that employers encounter.  

First, a little background about Form I-9s:  

• Every employee who works for you hired after November 6, 1986, must have a Form I-9 on file.  
• The U.S. Citizenship and Immigration Services (USCIS) issues a new Form I-9 approximately every three years.   
• Employees need only fill out the Form I-9 that was in effect when they were hired. There is no need to complete a new I-9 each time a new one comes out.  
• A completed Form I-9 must be retained until the latter of the following: three years from the date of hire or one year from the termination date.  

That seems easy enough, what could go wrong? Let’s review some of the more common errors that you can address now before a government auditor comes by for a visit. 

1. Incomplete I-9s – Often when HR staff perform a self-audit, they discover that some or many I-9s are missing required data. While there is no need to panic, it is a problem that must be addressed. First, determine what is missing. Are the deficiencies in Section 1 (employees’ responsibility) or section 2 (employers’ responsibility) or both? Assuming that it is Section 1, any corrections must be made by the employee and must be dated and initialed. In the case of a correction, have the employee draw a line through the incorrect data and insert the new information.If the errors are more significant you may want to ask the employee to complete a new Form I-9 which you should then append to the existing one, to demonstrate that you completed an I-9 at the initial time of hire. If section 2 has deficiencies the HR person with I-9 responsibilities should fix the mistakes. If it entails a request for new or updated documentation, remember the employee has only three days from their hire date to produce it
2. Former employees – If the employee is no longer employed, keep track of the retention period and destroy them once you are legally permitted to do so.
3. Inconsistent practices – If you can’t find photocopies of everyone’s forms of ID, that is an inconsistent practice that could be illegal. For example, if you have photocopies of identification documents only for employees with foreign-sounding names, that could be viewed as national origin discrimination, an issue specifically identified at the top of the Form I-9 as illegal. While the law is clear that you do not have to make photocopies of identification documents, you must be consistent in making photocopies of all documents or of none.
4. Document abuse – This is another illegal practice. In an abundance of caution, a manager may want the employee to produce identification from Lists A, B, and C. An employee need only produce identification forms on List A or a combination of List B and C, not all three.
5. Train HR staff on how to oversee the Form I-9 process – Every employer needs to make sure that the HR staff overseeing the completion of all Form I-9s is trained in how to complete the form, aware of key deadlines, and how to identify resources. The best practice is to limit the number of people tasked with completing I-9s to one or two well-trained members of your HR staff.
6. There is a strict timeline for I-9 completion.  Section 1 must be completed no later than the end of the first day of work and section two must be done three days later. The HR person should be well-versed in the instructions for Form I-9 to properly assess the documents received and assist the employee in completing Section 1 on day one.
7. The HR I-9 person should be familiar with the resources employers need to properly fill out a form I-9. These are the M-274 employer handbook and the written instructions that accompany the form I-9.  

Whatever policies you decide to follow regarding I-9s, it makes good sense to write them out in a memo so that an auditor would be familiar with your practices. For example, is your practice going to be making copies of I-9 identification documents or not? Include the date that you perform the self-audit and make the necessary corrections so that a government auditor will be familiar with your practice.  

I-9s are a continual source of confusion for HR professionals, even those with years of experience. Conducting an audit of your I-9s is a worthwhile use of your time.   

Members with questions about I-9s or the auditing process may call the AIM HR Helpline at 800-470-6277.