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Best practices for auditing I-9 forms

May 12, 2017

By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE

Immigration issues are high priority for the current administration, and the U.S. Immigration and Customs Enforcement agency (ICE) has indicated that it will be increasing their enforcement activities this year.   As a result of this intensified focus on immigration compliance, employers should be wary of potential ICE inspections of employer I-9 Employment Authorization Verification records.  In 2016, employer penalties for I-9 form infractions and paperwork errors increased making it even more important that employers understand their compliance requirements under the law. 

One of the best ways employers can ensure they are prepared for a possible ICE visit is to complete an audit of their I-9 forms.   In order to assist employers, ICE has published guidance for employers regarding best practices for conducting form I-9 audits and correcting I-9 errors.  In addition, the U.S. Citizenship and Immigration Services have published a Handbook for Employers – Guidance for Completing Form I-9 that provides helpful information regarding the proper way to complete a form I-9.

In the most recent ICE I-9 audit guidance, there is a slightly different process outlined regarding how to make a correction when a wrong version of the I-9 form was used.  For many years, the recommended way to correct the mistake was to have the employee complete a current version of the form and staple it to the previously completed I-9.  Under the new guidance, 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under the form I-9 rules that were current at the time of hire, the employer may correct the error by stapling the outdated completed form to a blank current version.  The employer should sign the current blank version noting why the current blank version is attached.

Another change in the guidance is that employers can fix errors on original forms when entire sections are incomplete.  If the employer determines that a whole section was not completed (for example section 1 or section 2), the employee should complete section 1 and the employer should complete section 2 on the original form as soon as possible (new form does not need to be completed).  If the form I-9 was never completed at the time of hire, then a current version of the I-9 form should be completed as soon as possible.  In both cases, the employer should attach a signed and dated explanation of the corrective action.

When an employer determines an I-9 error has been made, ICE recommends the following steps be followed:

An employer may not correct errors or omissions in Section 1.  If an employer discovers an error or omission in Section 1 of an employee’s form I-9, the employer should ask the employee to correct the error. The best way to correct the error is to have the employee: 

  • Draw a line through the incorrect information
  • Enter the correct or omitted information
  • Initial and date the correction or omitted information

Employees needing assistance to correct or enter omitted information in Section 1 can have a preparer and/or translator help with the correction or omitted information. The employee, preparer, or translator should: 

  • Draw a line through the incorrect information and enter the correct information or note the omitted information
  • Have the employee initial and date the correction or omitted information if able 
  • Initial and date the correction or omitted information next to the employee’s initials

If the preparer and/or translator who helped with a correction or noted omitted information completed the preparer and/or translator certification block when the employee initially completed the form I-9, he or she should not complete the certification block again. If the preparer and/or translator did not previously complete the preparer and/or translator certification block, he or she should: 

  • Complete the certification block
  • If the certification block was previously completed by a different preparer and/or translator: 
    • Draw a line through the previous preparer and/or translator information
    • Enter the new preparer and/or translator information (and indicate “for corrections”)

If the employee is no longer working for the employer, the employer should attach a signed and dated statement identifying the error or omission and explain why corrections could not be made (e.g., because the employee no longer works for the employer). 

An employer may only correct errors made in Section 2 or Section 3 of the form I-9. The best way to correct the form is to: 

  • Draw a line through the incorrect information
  • Enter the correct or omitted information
  • Initial and date the correction or omitted information 

An employer should not conceal any changes made on the form I-9 – for example, by erasing text or using correction fluid, nor should the employer backdate the form I-9.

An employer that made multiple errors in Section 2 or 3 of the form may redo the section(s) containing the errors on a new form I-9, and attach it to the previously completed form. An employer should attach an explanation of the changes made to an existing form I-9 or the reason a new form I-9 was completed, and sign and date the explanation.

Ultimately, HR professionals should develop good audit processes to ensure I-9 forms are completed correctly at the time of hire.  Having a consistent I-9 correction philosophy is an employer’s best defense. Incorrectly fixing I-9s could result in an employer being charged with perjury or evidence tampering if discovered by auditors.

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