By Kristin Cifolelli, courtesy of SBAM Approved Partner ASE
The I-9 form looks like it should be easy to use, but you know you are in trouble when the government puts out a 66-page handbook on the proper way to complete it. I have yet to find an employer that is 100% compliant with their forms and doesn’t sweat at least a little at the thought of the USCIS coming in to audit their documentation. Who can blame them? Failure to comply with I-9 requirements and paperwork errors can cost employers anywhere from $110 to $1,100 per violation. Hiring or continuing to employ an individual not authorized to work in the U.S can cost $375 to $16,000 per worker.
So what do you do when you review your I-9s and, inevitably, you find errors? Below are some of the more common errors that employers make, and how they should approach fixing them:
Section 1 Errors
Employees must complete Section 1 no later than the first day of employment but only after hire. Only the employee should correct his or her own errors in Section 1. In addition, only translators (if needed) should fix their own errors. Employers should never make corrections in the Employee Information and Attestation section, because the employee, not the employer, is the one attesting under penalty of perjury that the information is true. If an employer discovers an error in Section 1, the employee (or the translator) should be asked to correct the error in the following manner:
- Draw a line through the incorrect information so that it is still legible and make the corrections above it or in the adjacent margin where it can be clearly and easily seen. Never cross out the incorrect information so that it is illegible.
- Enter the correct information if it is missing.
- Initial and date all corrections as of the date they are made.
- If the signature/date of either the employee and/or translator is missing, do not have them to backdate the form. Simply sign the I-9 and enter the current date. Attach a note to the I-9 form indicating when the form was originally completed, explain why the signature was missing, indicate it is being rectified as part of an audit, and sign/date your documentation.
- Any corrections should always be in different color ink. Never use correction fluid (“white-out”).
- If correction fluid was used, the USCIS recommends attaching a signed and dated note to the original I-9 explaining what happened.
One of the major red flags for the USCIS when they audit I-9s is detecting that employers, not employees, have made changes in the immigration status section of the form. It raises the concern that the employer is committing fraud to meet I-9 requirements and is attempting to “doctor” the form.
Section 2 & 3 Errors
The employer must complete Section 2 within three business days of hire. The employer must certify that the employee’s documents verifying identity and work authorization appear to be genuine and belong to the employee. Employers may only correct errors made in Section 2 or 3 of the I-9 form. Only the employer representative that inspected the original documents may make the changes, since this was the individual who saw the original documents and attested to having done so under penalty of perjury.
- Correct any administrative errors by following the steps outlined above to fix incorrect or missing information. If the company’s practice is to gather copies of documents, make photocopies of the new documents at this time.
- If too many documents were provided, draw a line through the unneeded document(s) and initial and date the correction. If photocopies were made of the documents, there is no remedy in this situation. Do not destroy any copies.
- Missing signature/date in Section 2:
- If the individual who reviewed the documentation is no longer with the organization, complete a new I-9 and attach it to the original.
- Otherwise, have the original employer representative sign and date the form using the current date (do not backdate it).
- In either case, attach a note to the I-9 form indicating when the form was originally completed, explain why the signature was missing, indicate it is being rectified as part of an audit, and sign/date your documentation.
- If documents were simply recorded in the wrong column, draw an arrow to the correct column and initial/date the change.
When a New I-9 is Needed
In certain situations, it is not possible to fix the original form and a whole new I-9 may need to be completed:
- If the I-9 is missing
- If errors are so significant (e.g., entire sections are left blank or Section 2 is completed based on unacceptable documents). Complete new form I-9 and staple to the old form.
When completing a new I-9 form, employers should document (much like for a missing signature), why the form is missing, indicate it is being rectified as part of an audit, and sign/date your documentation. Always attach it to the back of your new I-9 form as well as any original incomplete I-9, if applicable.
Ultimately, HR professionals should develop good audit processes to ensure I-9 forms are completed correctly at the time of hire. Never try to conceal any changes made on the form; never try to backdate documents to make them look like they were completed timely. Every employer is going to make mistakes, and it is still better to get the information late than to have information be missing or wrong.
Having a consistent I-9 correction philosophy is an employer’s best defense when dealing with the USCIS. Incorrectly fixing I-9s could result in an employer being charged with perjury or evidence tampering if discovered by auditors.