By John Fay, immigration attorney and the general counsel of LawLogix, a division of Hyland Software (lawlogix.com)
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.
"We can audit any company, anywhere, of any size." – ICE Special Agent Brad Bench
ALERT: The feds have released a brand-new version of the I-9 form with new requirements. What's new on the revised I-9 form? And are you next in line for an 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under the Form I-9 rules that were current at the time of hire, the employer may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version, noting why the current blank version is attached (e.g., wrong edition was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 As an alternative, the employer may draft an explanation and attach it to the outdated completed Form I-9."
Too often, company execs and HR managers assume their I-9 compliance practices are in order when, in fact, their records and policies are littered with mistakes, leaving the business and individuals open to fines, lawsuits, and jail time. Are you sure that your I-9 practices can pass muster?
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.
Register now for our timely webinar, I-9 Compliance Workshop. You'll be learning from a true immigration law expert and Washington insider. Attorney Kevin Lashus is a former assistant chief counsel at the Department of Homeland Security, Immigration and Customs Enforcement.
Specifically, you will learn: - I-9 101. Discover the 10 essential steps to correctly fill out the revised version of the I-9.
- Documents. Which documents can you review for Lists A, B and C — and what has changed?
- Copying. Should you make copies of driver's licenses and other supporting documents?
- Review. How far are you required to go to determine if a document is "genuine"?
- Retention. Where must you store I-9s? Is a "binder system" the best? And how long must you retain them … 1 year, 3 years, more?
- Disposal. What's the proper way to discard of I-9s — must you shred them?
- Reverification. How can you handle reverification in the most legally safe and efficient way possible?
- Internal audits. What can be corrected and who should be auditing?
- Best practices. What else should you be doing?
- Electronic I-9 systems. What to consider when going paperless.
ICE is also focused on building criminal cases out of I-9 audits. Don't run the risk of your boss (or you!) being led off in handcuffs. Develop solid, audit-proof I-9 practices by joining us December 19 for this important interactive event.
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