Common Employer Mistakes in Handling I-9 Forms

Posted by: Karen Booher on September 21st, 2022

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.

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Source:

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).