Many of the I-9 forms in your files are just screaming for attention. They’re incomplete, incorrect, or sometimes just plain illegible. Either way, they represent a potential liability for the unprepared employer who gets a visit from an I-9 auditor.
U.S. Immigration and Customs Enforcement (ICE) recently released guidance on how to properly conduct an internal I-9 audit. Here are the tips:
Multiple errors
Some I-9s have minor cuts and bruises (missing a DOB, etc.), whereas others are in really bad shape (invalid documents, information in the wrong spaces, etc.) These I-9s may be beyond repair, requiring the drastic step of completing a new I-9.
Is there another option? Apparently, yes. The government is now recommending a slightly different process that involves redoing only those sections containing errors on a new Form I-9 and then attaching it to the original form.
Wrong version of the form
Another common mistake is when an employer accidentally uses an older version of the I-9 for a new hire (e.g., using the Aug. 7, 2009, version for an employee hired today).
For many years, the USCIS advised that the “best way” to correct this mistake is for both the employer and employee to complete the current version and staple it to the previously completed I-9.
Now, the guidance offers slightly different instructions, saying, “As long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, the employer may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version, noting why the current blank version is attached (e.g., wrong edition was used at time of hire). As an alternative, the employer may draft an explanation and attach it to the outdated completed Form I-9.”
Suspect-looking photocopy?
What if you discover that the photocopy of your employee’s identity or employment authorization document looks a bit fishy? Can you (or should you) ask the employee to present documentation?
The government does not mince words, saying employers should not request documentation from an employee solely because photocopies of documents are unclear or don’t appear genuine. Instead, the employer should only investigate such issues based on the totality of the circumstances, which should involve more than a faded photocopy.
Request alternate documents
Imagine that during a self-audit, you discover that an employee presented an unacceptable document during the I-9 process. Following the government’s instructions, you request from the employee another acceptable document. The employee promptly ignores your follow-up requests.
How long should you chase the employee for the missing document? Should you give 90 days, as was once suggested by the DHS? Should it be 10 days, the amount of time that ICE usually provides after issuing a Notice of Suspect Documents?
Not surprisingly, it depends. The guidance says employers should give “a reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy.” This is open to so much interpretation and confusion.
So, how would this play out in the real world? The employer can adopt a specific timeline and allow for well-defined exceptions as they arise. Here are three factors worth considering when drafting your policy:
- The employer’s industry, including any contractual obligations (especially with the federal government)
- How much time should it take for employees to procure (or at least apply for) a replacement document?
- Are there any unusual circumstances (personal or business-related) that would prevent the employee from obtaining the document in a timely fashion?
Use a third-party auditor?
The government also notes that an employer may delegate a third party to conduct the internal audit, while noting that the employer is ultimately on the hook for any violations committed by the third party.
John Fay is an immigration attorney and the general counsel of LawLogix, a division of Hyland Software (www.lawlogix.com).
Should you fix errors or 're-I-9' the entire workforce?
Over the years, employers have received conflicting guidance on whether it is permissible to complete new I-9s for an entire workforce in lieu of an internal I-9 audit.
The new federal guidance takes a cautious approach to the re-I-9 option. It says, “An employer is cautioned against obtaining new Forms I-9 from its existing employees (absent acquisition or merger) without regard to whether a particular Form I-9 is deficient.”
Translation: Yes, you can re-I-9 your workforce, but you had better be really sure that it’s necessary to do so. Moreover, some employers will also need to think about other issues that may arise from a broad re-I-9 project, such as notification requirements for certain unionized workforces.
