The Immigration Reform and Control Act of 1986 (IRCA) was established to prevent individuals who are not eligible to work in the United States from performing work. The act requires employers to complete an I-9 form for each employee within three days of hire.
Employers are required to perform the following I-9 verification requirements and to treat all new hires the same. This includes the following:
- Complete the I-9 form for all new hires. This form establishes that individuals hired are authorized to work in the United States.
- Permit employees to present any document or combination of documents acceptable by law. Employers cannot prefer one document over others for purposes of completing the I-9 form. If the documents are unexpired, allowed according to the list of acceptable documents on the most current I-9, and appear to be genuine and issued to the person presenting them, they should be accepted. Acceptable documents are listed at the end of the I-9.
- Update and re-verify I-9s as needed.
If you discover problems with your I-9s, consider taking the following actions:
- Conduct an audit to understand the scope of the problems;
- Address problems that you find; and
- Attempt to prevent future problems by implementing best practices.
Best Practices for Conducting an I-9 Audit
Step One: Preparing for the Audit
Determine the scope of your audit, will you review all the i-9 forms or only a sample? If you choose to review a sample, select the sample carefully. Make sure not select the forms to be audited based on employee's national origin or citizenship status. The safest approach may be a random sampling of forms.
Step Two: Conducting the Audit
Employers must check to see that there is an I-9 on file for every current employee who performs work for the employer in the United States. Employers should keep a list of current employees for whom they do not have an I-9.
Employers should not have an I-9 for nonemployees who may perform work, such as volunteers, independent contractors or consultants. If an employer does have an I-9 for these individuals, it should be removed from the employer's official I-9 file.
Employers should have two files of I-9s:
- I-9 forms (electronic or paper) for current employees.
- I-9 forms (electronic or paper) for terminated employees.
What to look for when auditing
Employers need to check the following information in each section of the I-9:
- Section 1
- The name, address, maiden name and date of birth must be completed.
- For the current I-9, the Social Security number is voluntary except for employers that participate in the E-verify program.
- The employee must identify his or her immigration status and sign and date the form.
- The preparer or translator section is to be completed only if someone other than the employee completed Section 1 on behalf of the employee.
- Section 2
- The proper document must be entered into the appropriate column. For example, employers must ensure that a List B document is in fact listed under List B and not under List C or List A.
- All required information must be entered for each document.
- The documents listed must satisfy the requirement to provide both proof of identity and proof of eligibility to work in the U.S.
- The certification section must be completed, and a representative of the company must sign and date the form.
- Section 3
- This section should be completed only if the employee's work authorization expired or if the employee has been rehired. It can also be completed if the employee had a name change, but this is not required. In most cases, Section 3 will be blank.
- Expired permanent resident cards and List B documents from the I-9 do not need to be reverified. These documents must not be expired when the I-9 is initially completed, but their subsequent expiration does not trigger the requirement to re-verify the I-9.
- You should exercise caution throughout the audit to avoid unlawful immigration practices. The purpose of your audit is to ensure compliance with the federal immigration law, not to target or single out specific employees. Ensure that nothing about the timing or scope of the audit is or could be perceived to be discriminatory or retaliatory.
Step Three: Address Problems in the I-9s
Each I-9 should be reviewed and put into groups based on your findings. The problem I-9s will be handled separately and in priority order. Current employees who have no I-9 on file are the highest priority, as their eligibility to work in the United States should be verified as quickly as possible.
If you have missing I-9s, you should complete the current version of the I-9 as soon as possible. You should not backdate the form when you sign it, although you should indicate the actual date employment began in the relevant section.
Missing or Incorrect Information on the I-9
The employer should not make any corrections to Section 1. If you find incorrect or missing information in this section, the employee will need to make any necessary corrections. To do so, the employee should draw a line through the incorrect information, enter the correct or missing information, and initial and date the corrected or missing information.
If an I-9 for a former employee contains incorrect or missing information, you can attach a signed and dated statement to the existing I-9 identifying the incorrect or missing information in the form and explaining that the I-9 cannot be corrected because the employee is no longer employed by you.
Employers should follow the same procedure for missing or incorrect information is in Sections 2 or 3. You should not try to conceal changes made to I-9s, either by erasing or covering up existing information. If there are too many errors to correct, you can redo the sections (2 and/or 3) containing errors on a new I-9 with the complete and accurate information, sign and date it with the current date, and staple it to the existing I-9.
Whether you correct an I-9 on the existing form or on a new form, you should also always attach a signed and dated explanation of the action taken.
If Sections 2 or 3 were not completed on the existing form, you should complete them as soon as possible, list the actual date that the person’s employment began and sign and date the section with the current date. Also attach a signed and dated explanation of the steps taken to correctly complete the I-9.
Step Four: Complete the Audit
As corrections are made and missing I-9s begin to come in, an employer's task will be to organize the I-9s and clearly document the steps it took during the audit. Employers can refer to the guide on how to retain and file I-9s for additional guidance on how to organize their I-9 files. Employers may wish to print this procedure to document the process they followed during the audit process. Employers should also retain the I-9 audit logs and communications to employees regarding the I-9 audit process. Employers may wish to keep the audit documentation in a separate I-9 audit file or to place this documentation in their files with the I-9 forms themselves.
Ensuring your I-9s are compliant is extremely important. Employers can face civil and criminal penalties for knowingly hiring or continuing to employ individuals who are not authorized to work in the United States. Federal immigration law requires that all employers verify that an individual is authorized to work in the United States before employing that person. You verify employment eligibility by completing the I-9 for every new employee. If you don’t comply with the requirements — either by not completing the form or not doing so properly — you can face sanctions.
Lauren Sims, the author of this article, is an eqHR Solutions Principal Human Resources Consultant.
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