Common Employer Mistakes in Handling I-9 Forms
Violations assessed to employers for incorrect I-9 Forms can be very costly. Thanks to SHRM (the Society for Human Resource Management) for their recent article, compiling a list from various attorneys of common I-9 mistakes.
From Mira Mdivani, an immigration attorney in Overland Park, KS – her “Top Ten I-9 Mistakes”
- Not understanding the difference between correcting I-9s and correcting practices leading to I-9 violations. Mdviani recommends that employers provide training so the same mistakes aren’t made again and that internal documentation of I-9 handling procedures are updated after any changes are made.
- Allowing untrained staff to administer I-9s.
- Not conducting an internal I-9 audit.
- Having untrained staff engage in the I-9 audit.
- Not supervising new employees filling out Section 1.
- Accepting unacceptable documents.
- Accepting fraudulent documents, such as fake lawful permanent resident or Social Security cards.
- Not recording the document title, issuing authority and expiration date or not recording this information correctly.
- Not making copies of I-9 documents.
- Making corrections without initialing and dating them.
From Greg Berk, an attorney with Sheppard Mullin in Orange County, CA
- Employers not double-checking that they and their employees have filled out every field on the I-9.
- Employees not signing and dating Section 1.
- Employers not listing the date of hire in Section 2 in the certification clause.
- Employers not signing or dating Section 2.
Employers should not accept a restricted Social Security card that says, “Not Valid Without DHS [Department of Homeland Security] Work Authorization,” Berk cautions.
From Kevin Lashus, an attorney with FisherBroyles in Austin, TX
Timing errors are the most common seen by Lashus:
- Section 1 must be completed before close of business (COB) the first day of employ.
- Section 2 must be completed before the COB the third day after the first day of employee. For example, if the employee is hired on Monday, Section 2 must be completed before COB Thursday.
- Important – this is business days, so if an employer is operational on the weekends, the weekend days are included.
From Yova Borovska, an attorney with Buchanan Ingersoll & Rooney in Tampa, FL
- Employers who utilize a remote agent to physically examine the I-9 documents, do not have the remote agent complete Section 2. Rather, the employer completes that, attesting to having examined the I-9 documents. This is incorrect as the individual who physically examined the documents must be the one signing the attestation under penalty of perjury in Section 2.
- Record retention errors are also common, according to Borovska. Purging forms too early causes the I-9 forms to be treated as missing. “The rule is that only terminated employees’ I-9s can be purged three years after hire or one year after termination, whichever is later. Sometimes employers will mistakenly purge forms for active employees, which is inappropriate.”
This is not a comprehensive list of I-9 handling errors. Employers are encouraged to obtain legal guidance for complicated I-9 situations.
SHRM’s HR Week, August 21, 2022. “Top 10 Mistakes in Handling I-9 Forms”, by Allen Smith, J.D., August 12, 2022. (Subscription may be required).
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