Human Resources News & Insights

Feds crack down on I-9s: 4 things HR needs to know

i-9

The federal government’s cracking down on I-9 recordkeeping, with a big nationwide audit underway and more investigations likely to come soon.

Earlier this month, U.S. Immigration and Customs Enforcement (ICE) announced it was checking the I-9 records of more than 650 employers. The effort is part of the agency’s new plan to give employers greater responsibility in the fight against illegal immigration.

ICE described the audits as a “first step,” meaning more rounds of inspections are probably coming. Here’s what HR needs to know:

1. Who’s affected?

First off, who can be audited? The answer: anyone. ICE said the companies in the current investigation were chosen based on leads and other information obtained through investigations. Experts say certain industries, such as construction, manufacturing, hotels and restaurants, are being watched more closely than others.

2. What happens?

ICE starts the process by sending the employer a notice of inspection (NOI) requesting certain documents. In addition to I-9 forms, ICE could request EINs, payroll records and correspondences with the Social Security Administration regarding no-match letters.

Companies have three days to send the documents. They can ask for a time extension in some cases, but response to the NOI still must be quick.

Once a notice arrives, attorneys recommend gathering the documents and conducting a self-audit before submission to correct simple mistakes.

If ICE isn’t satisfied, it may conduct an interview with the employer — though the company has the right to refer the agency to an attorney. Once everything’s reviewed, the company could receive a “Notice of Intent to Fine,” as well as a list of undocumented workers that must be terminated and a list of “suspect documents,” requiring the employer to complete new I-9s.

3. How much can it cost?

In most cases, fines for bad documentation range from $110 to $1,100 per form. ICE can also pursue criminal charges if it thinks the company willfully hired illegal workers.

4. What can HR do now?

The best option for employers, of course, is ensure the documentation is spotless before an audit occurs. Experts recommend conducting an internal audit annually.

Both internal and ICE audits will go more smoothly if unneeded forms are discarded. (The law requires companies to keep I-9s for three years after the employee is hired or one year after termination, whichever is later.) The first step of an audit should to compile a complete list of which forms should still be on file.

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  • Judy Warga

    Attorney’s suggest conducting an internal audit to correct any errors that are found – What is the proper way to correct errors? Should a new I-9′s be prepared? How do you correct an original I-9 that is over-documented (too many documents listed)?

  • Alissa

    Can anyone tell me what forms should still be on file? Does that mean for terminated employees? I am in Texas if that makes a difference. I attended a payroll seminar recently, and the instructor told us to shred our copies of social security cards and drivers license’ after we verify them. Does anyone else do that?

  • LB

    Alissa – yes. We have been doing that since our company started using eVerify. There should not be copies of SSN, DL, birth certificates, passports, etc. Those should be discarded right away. We also conduct a self audit every quarter, which really helps. Depending on what type of errors are on the original I9, you can handle it case by case. If need be, a new I9 will need to be completed.

  • Martha

    I keep the I-9s in a separate binder and not in the personnel folder. Access to this binder is restricted to all other managers and staff on a need to know/see basis.

  • http://www.montpelier.org Sherida

    Is it true that copies of documents required for I-9 verification should not be attached and on file with the I-9? And, is it best to keep I-9s in a file separate from other personnel file documents, which are generally filed by employee name? And, what forms should be on file?
    thanks…SJH

  • http://www.formi9.com Kelly Randall

    Form I-9 Compliance has an Error-detecting Form I-9 with a one-click seemless integration to E-Verify. Form I-9 Compliance has created the most user friendly, cost effective and comprehensive I-9 Management Solution for employers to adopt “Best Practices” protocols for all of their Form I-9 administration needs.

  • mkh

    Most of the questions are answered on the I-9 form itself. http://www.uscis.gov/files/form/i-9.pdf

    Forms are kept for no less than 3 years, regardless of the length of employment, but also one year after termination which could be decades depending on length of employment.

    As for copies of identity documents, having copies of identity documents in the personnel file for all employees is advisable in case you ever need photo or other info, but do not keep them with the I-9.

    I would recommend signing up for E-Verify, as it affords: training before user access, a clear set of instructions for individuals who cannot be verified, and a printable record of USCIS transaction showing employment eligibility status.

    https://e-verify.uscis.gov/enroll/

    More information on I-9 available at: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=91919c7755cb9010VgnVCM10000045f3d6a1RCRD&vgnextchannel=91919c7755cb9010VgnVCM10000045f3d6a1RCRD

  • MadMommy

    The fines are too low. Every employer needs to make sure the worker is legit. The largest problem with false Social Security numbers is Hispanic workers using their kids ss#. They give the anchor baby the father’s name and then use that ID for themselves as their legal papers to work. Unless you are careful, you won’t know to check the DOB to see if it matches the 35 year old worker who’s records say that he was born 5 years ago. Same name.

    Also, keep a keen eye on all provided documents, there is a huge supply chain of illegal birth certificates coming from the Mexican underground. Often using the wrong hospital address or name.

    Better make sure you have a legal worker. The fines should be much higher, otherwise it’s easier to just pay the 100 bucks. But I certainly hope the American employers get the message. Hire American workers! Stop cutting corners and leaving the taxpayer to pick up the tab for your greed.

  • Brittancus

    The need to erase the blemish of illegal immigration prompted Congress to enact the Immigration Reform and Control Act (IRCA) of 1986. The IRCA toughened criminal sanctions for employers who hired illegal aliens, denied illegal aliens federally funded welfare benefits, and legitimized some aliens through an amnesty program–EXCEPT THESE LAWS NEVER WERE ENFORCED? Neither the federal government, nor state county have denied most benefits to illegal immigrants. That is why one state–California–is involved in a monstrous budget deficit? California–THE SANCTUARY STATE– has been overrun with millions of illegal entrants, as with Arizona and other border states. An the ingredients of federal law has been a breeding ground for entitlements that have been gravely compromised by pandering to minority caucuses REMEMBER THERE ARE MANY SPECIAL INTEREST GROUPS, WHO WANT ABSOLUTELY NO RESTRICTIONS ON HOW MANY PEOPLE CAN BE ALLOWED INTO THE US?.

    It would be untrue to accuse just the Democrats for this, because all politicians have been involved in distracting–THE PEOPLE–from the real issues that cost them billions of dollars. The population falls for these distractions every time, so they can hit you with either higher taxes or give huge tax reimbursements to their corporate comrades. Illegal immigration is a major depletion of every tax treasury, throughout this land. Giving any kind of AMNESTY will enhance the predictable–OVERPOPULATION. The complete neglect of our interstate highway system, tunnels and bridges is just the slow eroding of our infrastructure. In the near future the population growth will explode, to over another hundred million people. IT would be an unmentionable catastrophe to open the doors wide at the border, giving millions of illegal immigrant’s expressway to a path to citizenship. Already our Senate has voted to give illegal immigrants and families a right to access the new health care provisions–WHICH THE TAXPAYER WILL PAY FOR?
    THEREFORE THIS IS A FREE WELFARE FOR ALL PARIAH BUSINESSES THAT STILL HIRE ILLEGAL LABORERS.

    You must decide the future of future generations, because just my ranting will have very little influence on the power brokers in Washington. Call your Senator or Congressman at 202-224-3121 and impress on the people you vote into office that you want an alternative to the predatory health care insurers. You want the right to choose? That includes the Universal government run system that certainly isn’t any worse than the profiteering insurers. That you also want your political representative to sever any path to citizenship, but to enforce a firm, permanent–ALL ENCOMPASSING– E-Verify, police 287(g) enforcement and not to rescind the no-match letter or weaken ICE raids. Tell them you are a voter and convey to them, as you voted them into office as you can remove them, just as easy? Read the naked true facts by GOOGLING–NUMBERSUSA

  • Confused HR

    I am confused about the correct I-9 form. The current one on the IRS website expires 6/30/09. If I have these filled out are they good?

  • E

    The I-9 forms w/ the expiration date of 6/30/09 are still good to use. The Dept. of Homeland Security had recently announced that this form will continue to be valid and will not expire until the a newer version is approved.

  • DMHR

    A couple of people have mentioned that they choose to keep their photocopies of ID’s in the personnel file. They MUST be attached to the I-9 form.

    Confused HR: I called Immigration Services asking the same thing. I was told that when a new one is published, begin using it then. In the meantime, continue using the one that was revised on 2/2/09. BUT, as with any other government office, the answer may differ depending on who answers the phone.

  • Alissa

    DMHR: Why do you say that the ID’s MUST be attached tot he I-9 form. I have heard from numerous people not to keep them.

  • LB

    Supporting documentation (copies of IDs) should never be kept with an EE’s personnel file. This is strictly not in compliance with EEOC. There should never be any type of documentation included in the file that gives a personal description of your EE. EEOC forms are voluntary, however, they should be discarded immediately as well.

  • DMHR

    http://www.uscis.gov/files/nativedocuments/m-274_3apr09.pdf

    Check out this website. Look specifically at page 18…Retaing copies of I-9 documentation. I was surprised when I read it awhile back.

    Please let me know if anyone reads it and understands it to mean differently.

  • DMHR

    Retaing??? I meant Retaining. ……. long day

  • Terri

    Look at the I-9 instruction sheet. It states as follows: “Employers may, but are not required to, photocopy the document(s) presented. If photocopies are made, they must be made for all new hires. Photocopies may only be used for the verification process and must be retained with Form I-9.”

    You have to be consistent in how you process the I-9. If you make photocopies, then every new hire must be treated the same. If you use photocopies, attach them to the I-9 and file this form separately from the employee file.

  • DMHR

    Terri: Exactly.

  • LB

    Thank you Terri!

  • Chris

    Colorado State Law requires us to keep copies of the ID in addition to the I9 and E-Verify info, and for us to sign an affirmation that we have not hired someone illegal. Like the rest of the laws , I have never heard of a single case of state enforcement.

  • Terri

    DMHR,
    I took a look at page 18 and it says (for those who haven’t looked at it):

    “Remember, Forms I-9 must be stored for 3 years after the date you hire an employee, or 1 year after the date you or the employee terminates employment, whichever is later, which can result in a long retention period.”

    My summation is if an employee terms before 3 years of employment – hold the I-9 for one year.
    If an employee terms after 3 years of employment – discard the I-9 immediately. I guess they consider 3 years to be a long retention period, unless I misinterpreted it.

  • DMHR

    Yeah. I’m aware of the retention period and possibly hang on to ours longer than a year after termination. Not sure what you mean by …for those who haven’t looked at it..???? BUT, I do have a question about the retention. I know that the I-9 should not be in the EE’s file but what about they term? I usually pull the I-9 from my I-9 file and file it in the EE’s file once they are terminated. Do you think that’s ok? That way, no matter how long they’ve been employed with us at the time they leave, I’m still covered since we keep our EE files forever.

    I’m leaving for the day but will check for your response in the a.m. Thanks!!

  • LB

    DMHR: You should pull the termed EE’s I9 and place them in an “inactive I9″ folder. Since both the I9′s and EE personnel files can be destroyed after a certain amount of year(s), more than likely, the I9 will not be destroyed the same time the EE personnel file gets destroyed. They should always be kept separate.

  • Terri

    I’ve attached the guidelines from SHRM which tells us what can go into a file. It shouldn’t matter what the employee status is – certain documents should not be in the file no matter what, and if DHS tells us we can discard the I-9 form, then do so to help handle the overload of paper.

    Here you go:

    What should not be included in a basic personnel file:

    • medical/insurance records

    • EEO/invitation to self-identify disability or veteran status records

    • immigration (I-9) forms

    • safety training records

    • child support/garnishments

    • litigation documents

    • workers’ compensation claims

    • requests for employment/payroll verification

  • Melbac

    Terri, your summation of the retention period is semi correct.
    Yes, If the employee leaves less than 3 years you hold it for one year after they leave. If the employee leaves after 3 years or longer you must still retain for 1 year from the time they left. Thus creating the long retention period. If someone is employed for 10 years then the form would be held for a total of 11 years.

  • too many rules

    My boss keeps saying that it is mandatory that the whole form be completed in the same color ink. I cannot find this in the instructions, although I just browsed thru it quickly. Can someone please tell me if this is true, and if so, WHERE does it say that??? (website or what publication?)

  • Marie

    Terri,
    Re: your summation of retention periods. “If an employee terms after 3 years of employment – discard the I-9 immediately” NOT!

    The guidelines are clear and even give an example. The key words are “whichever is later.” So you would definitely keep the form for as long as the ee is employed (15 in their example), and must keep it for one year after termination (16 years). On the other end, if someone leaves after just one year, you still have to keep the forms for at least 3 years (the longest period).

  • Kay

    ” Forms I-9 must be stored for 3 years after the date you hire an employee”

    I file my terminated employee’s I-9′s in a separate file by the year. Once three years have passed, I can dump the whole file.

  • Terri

    These chats are informative and enlightening. So from this point forward, I am well versed in how to handle the I-9. Thanks and I hope none of you are involved in the ICE audit, and if you are – good luck!

  • mkh

    I-9 Form retention:

    Keep the form the longer of the two…

    One year after termination or three years form hire.

    This means all active employee (except those hire before original law was implemented) must have an I-9 on file.

    Upon termination, you will either keep the form one additional year or if employment was for less than two full years, keep it until the third year after the hire date. (If an employee works less than 2 years, you will keep the I-9 for three years beyond the hire date – the longer of the two provisions as required)

    May I suggest you do the following when an employee terminates:
    1) Review the hire date
    1)a) If less than 2 years of service, calculate the retention date three years from hire date
    1)b) If more than 2 years of service, calculate retention date one year from termination date
    2) File in inactive I-9 storage according to retention date (i.e. July 2011)
    3) Purge inactive I-9 storage as retention date passes

    Not having the forms you should will result in fines, if audited. USCIS will be forced to assume the I-9 was not completed.

    Having obsolete forms opens the door for inspection of those forms. Getting the retention wrong will only foster the notion you have other flaws in your I-9 records.

  • Isabella

    I see I am not the only one with all the questions, concerns and honestly fear that I had when thinking about this. I run an HR department for a mid-sizzed company and I was loosing sleep thinking about a possible government audit. I felt as though my neck was on the line and in these turbulent times I could not afford to loose my job or my reputation in this field over paperwork mistakes. I hired an outside company (I used LegalEmployer.com). For a small fee – they not only audited all my files, they pointed out mistakes that had not been caught by me or my team and helped me to put together an efficient system to move forward. I now feel confident that I am fully prepared in the event of any kind of audit.

  • HrLisa

    We keep our Active I-9’s in hanging folders that are alphabetical. Our Inactive I-9’s are kept in separate hanging folders that are separated by month and within each folder separated by year. For example for the month of Jan we have 2010, 2011, and 2012 or for August 2009, 2010, 2011, and 2012. On Sept. 1st I will destroy all Aug 2009 inactive I-9’s. This system seems to work well for us. We also make copies of all documentation that is submitted for all employees and keep it attached to the I-9 form.

    My question is about our active I-9’s. Prior to me working here they were pretty lax about the I-9 form. I conducted an internal audit about 3 years ago and when I came across forms that were filled out incorrectly (like documentation from ‘List B’ was written in ‘List A’ spot in Section 2). At the time my boss told me not to worry about those forms and just focus on the ones we did not have. Should I re-audit our forms and make sure all are filled out correctly? Has anyone done this? Are the ‘I-9 police’ that picky? Any comments are greatly appreciated.

  • John T

    Isabella,

    I am also an HR manager for a mid sized company in NY. I jutst took over the position from someone else who left the company. I checked the files and there seems to be missing I9′s and I am nervous about an upcoming government audit.

    Youy mentioned that company “legalemployer.com”, can you tell me what they charged you to do audits?

    Thanks.

  • Mitchell S

    Isabella – I own a IT services company in the northeast, and I have about 125 employees. I haven’t put too much tought into our I-9 compliance, but since it has been in the news lately, I am concerned. What is your opinion of this LegalEmployer.com? How did the process go for them to audit your employee I-9 forms? What is easy?

  • http://www.ppipayroll.com messex

    What if your office is paperless? We are going to a paperless office, so all our personnel folders and information will be stored electronically. Has anyone read anything concerning electronic record keeping?

  • LB

    messex: as far as I know, they need the original I9′s on file. I dont think an electronic “copy” is sufficient.

  • JW

    Isabella,
    Can you share with us the recommended approach to correcting orginial I-9′s? Did they suggest correcting the orginial in “red” ink or preparing a new I-9, for example? I can’t afford an outside audit service as we are a small company.

  • mkh

    Regarding corrections: see employer handbook http://www.uscis.gov/files/nativedocuments/m-274.pdf page 31 question 16

    Regarding retaining copies of documents: see employer handbook page 32 question 24

  • Isabella

    HR Lisa, John T, Mitch S, Messex, JW,

    1. The feds are “that picky”. I guess I am sensitive to the subject since my brother-in-laws company was just audited by ICE and he has to pay over $4,500 in fines and all of his employees are legal! They were paperwork errors which caused the penalties – many of them simple. I called him after reading the posted comments and 1 of his errors was a List B item being documented as List A.

    Our attrny. told me that if we used an outside company the government would see that as “good faith” and would help to lower any fines – if any. Be prepared and have a peace of mind.

    2. It is not my place to quote a price for another company. It is based on the number of employees (I-9 forms) to be reviewed. I also had them do a webinar for my team on I-9 Compliance and what to look for – very helpful. The fee was nominal and was no way near the potential fines I would have been liable for. It is good “insurance”. I was very surprised at how affordable it was.

    3. The process was easy – they were very down to earth and friendly. My rep Chris walked me through the process, audited my forms, made a detailed report of all the errors that he found, the potential fines I would be in for if audited by the government and then offered solutions on how to fix the errors. Some I couldn’t, but most I could. He then helped me create an I-9 process for the company – which included document storage and follow-up lists and periodic self-audits. It was all included (except for the webinar.) It was worth it just getting caught up on the latest rules and guidelines.

    4. E-forms are acceptable. My brother-in laws’ forms were all electronic and ICE did not have a problem with that.

    5. Corrections – made on the original form and initialed and dated by both you and the employee (they did not mention color). A key they kept stressing is that all forms must be treated equally. In other words you shouldn’t make a copy of some and not others. If you make a certain kind of change to one – it must be made to all of them. You don’t want to add discrimination issues on top of everything else. Using an outside partner can help lift that threat as they are an unbiased third party who knows the rules.

    Hope this helps. Good luck.

  • http://www.I-9Okay.com Camille

    I am a consultant with http://www.I-9Okay.com and can answer a lot of these questions for you. I worked in an immigration law firm as their I-9 and Employer Sanctions specialist so have dealt with a lot of these issues.

    As for electronic storage: there are provisions in place for electronic storage and signatures. Follow the rules closely and you will be okay.

    As for corrections: the rule of thumb is you never want a correction to look like you are trying to cover something up or to defraud the govt. Make all corrections in a different color ink, initial and date the correction. NEVER USE WHITE OUT! Always mark one line through the mistake so it is clear what was there previously. You may not change any employee information in Section One of the form without the employee’s intials.

    Documentation: the rule here is IF you choose to keep copies of documents they should be kept with the Form I-9. If it is your policy to keep documents you MUST keep them for everyone across the board, no exceptions. If you are using E-Verify you MUST keep documents along with the E-Verify case report. If you are in the State of Colorado you MUST keep documents with the Colorado Affirmation form.

    Keeping I-9s seperate from the personnel file is a good idea though it IS NOT part of the law. In the event of an ICE inspection you will be asked to produce all of your I-9s, within 3 days of the date of the notice, for all of your current employees and your terminated employees going back 3 years. It is much easier to retrieve your I-9 files or binders than it is to search through all of your personnel files.

    Lot’s of mine fields to step in when it comes to I-9 compliance. Consult an expert who knows the law and can help you by conducting a review of your current processes and set up a complliance plan for you.

  • Tara

    Hi,

    I am trying to find an I-9/E-verify in person conference, seminar or workshop. Has anyone gone to one or can someone PLEASE point me in the right direction – I googled this but I kept finding seminar that have already passed. Thanks!

  • Monica

    EEOC rules state that you do NOT keep photocopies of ID’s in the employees personnel file. You should set upt 2 files per employee plus and I9 binder. First file is the employees HR file, 2nd is the employees Benefits. I9 binder has the I9 plus photocopies of the required documentation that you used on the I9. Every employee should be set up consistently. We have an I9 binder by alphabet…every employee is in the binder by their last name.

  • Marlene

    Is there a webinair that anyone could recommend to attend?

  • Darlene

    Can someone tell me what to do with I9 forms that were not completed properly? We have some where the document numbers and expiration dates were not noted on the form. Should we go back to the employee in question and get the rest of the information?

  • Sandra

    I AM TOTALLY CONFUSED!! IF YOU CAN DISCARD AFTER AN EMPLOYEE HAS WORKED FOR YOU FOR 3 YEARS; HOW WILL YOU HAVE IT TO FILE FOR ANOTHER YEAR IF THEY LEAVE AFTER 10 YEARS?

  • Terri

    Tara,
    In reference to E-Verify go to their websie and take the tutorial – you are then tested and if you pass are approved to access the system.

  • Mitchell S

    Tara –

    You can use an e-Verify designated agent for your processing needs, so you don’t have to do it yourself. LegalEmployer.com can manage that process for you. Just logon to their website or call 1-866-726-9620 for assistance.

  • Alissa

    Question…..if there are mistakes on an old I-9 and a new I-9 needs to be filled out, what should I do with the old I-9? I am assuming I have to keep it.

  • Mitchell S

    Darlene,

    In repsonse to your request about what to do with I-9 forms not completed properly, you can have LegalEmployer.com do an audit on them, and provide remediation steps to correct inaccuracies. The government would look upon that as a “good faith” effort, and be more lenient on fines if you were audited by the DHS. Just logon to LegalEmployer’s website or call 1-866-726-9620 for assistance.

  • http://www.I-9Okay.com Camille

    Darlene,

    If the employees still work for you and you did not retain copies of the documents that were presented at the time the I-9 was completed you can ask the employee to present the documents for review so that the form can be completed.

    If the employee has terminated and you don’t have copies of the docs there is nothing you can do at this juncture on those forms.

    http://www.I-9Okay.com has a great FAQ page and a free guide for employers. Both are helpful.

  • cde

    Terri & Monica,

    Where did you get your information regarding keeping 2 separate files for each employee, one for HR and the second for benefits? Since this discussion I have pulled all of our I9 forms for our current employees and filed them altogether in one binder. We have maintained only one folder for each employee

  • HrLisa

    CDE– i dont think it is required you keep them separate, it is just easier if you are going to be audited to gather all the forms needed faster. we are a company of 1500 ppl and if we kept the I9 in their files it would take a long time to go through all of them to get all the forms.

  • http://www.I-9Okay.com Camille

    HR Lisa and CDE,

    The law does NOT require you to keep the I-9s separate from the personnel file BUT it is considered a “best practice”. It is easier to manage the form if it is separate. A good system is to keep all current employee’s I-9s in a separate folder in alphabetical order, all terminated employee forms in a separate folder in date of termination order (oldest on top) so that it is easy to purge when the retention period has ended. If you are in a state that requires additional forms, like Colorado, have the same set-up for the state forms.

    Remember, ICE and the USDOL are the only agencies that have authority to look at the I-9. Keeping them separate allows you to easily find and present forms in the event of an inspection.

    There are great Fact Sheets available at http://www.I-9Okay.com to help answer many of these questions.

  • cde

    HrLisa and Camille thanks for the information.

  • Arya

    Hi all

    This is an interesting discussion. I am trying to do an audit for my company. and i have lots of questions, i researched online and find contradictory answers for eveything. I hope someone will help me with my questions regarding I9 correction procedures

    * Can we fill out an I-9 in red ink?.
    * If we make any corrections in the form, can we make it in the same ink color that was originally used to fill out the form, or use a different or red color for that?
    * Can employee’s section be typed out?
    * If we make three kind of changes, do we need to date/initialize next to each corrections or one initialization/date in the form should be okay?
    * Does it matter if the I-9 administrator has signed in the 3rd section of the form while originally filling out the form? If not, can we just cross a line across it and date/initialize it during audit?
    * If the document info is placed in wrong listing, ie. Social security card in list B and Driver license in list C, can we just draw cross arrows indicating correct placement or do we have to fill out a new form?
    * If document number, dates, issuing authority are not filled out in the order given, can we correct it with arrows?
    * Does the second page of the I9 with the list of acceptable documents be attached with the first page of the I-9 or it doesnt matter/

    and I agree with Camile. It is not specified in law to keep I9 seperate, but rather a best practice coz besides being able to manage, if you have an I9 audit and you keep it together with other files, then the person checking your I-9 will have access to all other confidential documetns besides the I9.

  • Kristen

    Dear HR Professionals,

    if i needed to make corrections in the I-9 form for employees hired before april 3, 2009, do i have to have my staff fill out a completely new I-9 since the newer version has come out (02-02-09) or is it ok to make corrections in the old forms itselr

  • Arya

    This is a very informative thread on I-9. thank you all.

    I am tryng to do an audit of my own and i have some questions before i proceed wit the audit. i have tried researching the net and found different answers…so i am hoping you can help me. here are my questions.

    # Does the second page of the form with the listing of acceptable documents need to be attached with the I9 form when filing.
    # Can we fill out an I-9 in red ink?.
    # If we make any corrections in the form, can we make it in the same ink color that was originally used to fill out the form, or use a different or red color for that?
    # Can employee’s section be typed out?
    # If we make three kind of changes, do we need to date/initialize next to each corrections or one initialization/date in the form should be okay?
    # Does it matter if the I-9 administrator has signed in the 3rd section of the form while originally filling out the form? If not, can we just cross a line across it and date/initialize it during audit?
    # If the document info is placed in wrong listing, ie. Social security card in list B and Driver license in list C, can we just draw cross arrows indicating correct placement or do we have to fill out a new form?
    # If document number, dates, issuing authority are not filled out in the order given, can we correct it with arrows?

  • http://www.I-9Okay.com Camille

    Kristen:

    You do not need to complete the “new” form. It is acceptable to make corrections to the “old” form.

  • http://www.I-9Okay.com Camille

    Arya,

    Yes, it DOES matter if the administrator signed in Section 3 when the form was originally completed. The WHOLE REASON for the Form I-9 is the 2 attestations – one made by the employee and the other made by the employer. If the administrator does not sign in the appropriate spot, the attestation is unenforceable and will be subject to the maximum fine amount. If there is cause to believe the error was made “on purpose” to avoid perjury charges it is considered document fraud.

    I-9s are complex and need to be taken seriously. There is a lot of misinformation that is floating about on the internet. I find many people are confused about what the law requires versus what is a best practice, versus what someone in their company decided was the I-9 process 10 years ago. Be careful about who you take advice from.

    I highly recommend that you either take a training class or hire a consultant to help you. At the very least, you should get a copy of the M-274, Handbook for Employers and study it.

    There are great fact sheets and a very good FAQ page on http://www.I-9Okay.com. Good Luck!

  • http://www.nursefinders.com Cheryl S.

    According to the Instructions for the Form I-9, Employment Eligibility Verification; Employers may, but are not required to photocopy the identifying documents. “If photocopies are made, they must be made for all new hires. Photocopies may only be used for the verification process and must be retained with the Form I-9″

  • http://www.I-9Okay.com Camille

    Cheryl,

    You are correct but as with many “rules” of I-9 compliance there are some caveats. If you are using E-Verify you must keep copies of the documents with the E-Verify case details report. Also, some states have additional requirements. For example, the state of Colorado requires an additional form called an Affirmation of Verification and an employer is required to keep copies of the documents with the Affirmation. There is a great FAQ section at http://www.I-9Okay.com to help with these types of questions.

  • DeeDee

    I have been through an audit and I can say that some of the info being disseminated is not correct. You MUST keep I-9s separate and it is a good practice to have both an active I-9 binder and an inactive I-9 binder. The I-9s MUST be completed in the same color ink, but let me clarify. The employee can’t use two different pens to complete section 1, and the employer’s representative can’t use two different pens to complete section 3. If the agent detects two different inks they will flag it as an invalid I-9. The forms cannot be filled out in pencil. They can’t have white-out on them. Information MUST be placed in the appropriate fields. When we were audited The fines for incorrectly completed I-9s were $200 apiece. The fines for incomplete I-9s were $1,000 apiece. I do NOT keep IDs with the I-9s because if you “accidentally” forget to copy it for ONE person you are not in compliance and if the investigator catches that one, you are toast. It is a good practice to keep the ID’s separately. Just have a third binder and keep the ID’s there. That way if you ever need to find anyone’s picture you just have one place to look.

    As for personnel folders I have been in HR for 17 years and I have always been told to have two folders on each employee. One is their “public” folder and the other is their “confidential” folder. The public folder is the one that contains their application, resume, payroll change forms, evaluations, disciplinary actions, training records, orientation acknowledgements, etc. This is the one that if a supervisor needs to review the employee file, this is the ONLY ONE they get to look at. They NEVER get to review the confidential folder.

    The confidential folder contains everything else – drug screen results, reference check forms, letters and results, background check forms, letters and results, tax forms, benefit enrollment and change forms, direct deposit information, doctor notes for absences, actions taken regarding failed drug testing and rehab programs, etc. This is where you could put copies of the ID’s as well. If you are a DOT company you also need a third file – the Driver Qual file. If you have Safety programs it has also been suggested to keep a fourth file, a separate safety folder with the individuals’ certifications, training documents, training program quizzes, tests, etc.

  • http://www.I-9Okay.com Camille

    DeeDee,

    Congratulations on surviving an ICE audit. Most of the information you have provided is accurate however there is no part of the law that requires that you keep the I-9s separate from the personnel file. It is considered a “best practice”. The M-274 Handbook states: “You may retain completed paper forms onsite, or at an off-site storage facility, for the required retention period, as long as you are able to present the Forms I-9 within 3 days of an inspection request from DHS, OSC, or U.S. Department of Labor (DOL) officers.” For most businesses keeping the I-9s seperate is a better way to manage them than including them in a personnel file. Upon audit you must produce only the forms that are requested and NOT allow the ICE agents access to the whole personnel file. Having them seperate insures the agents are ONLY looking at the docuemnts they have authority to examine.

    As far as supporting documents are concerned the M-274 states: “You may choose to copy or scan documents presented by an employee, which you must retain with his or her Form I-9. Even if you retain copies of documentation, you are still required to fully complete Section 2 of Form I-9. If you choose to retain copies of employee documentation, you must do so for all employees, regardless of national origin or citizenship status, or you may be in violation of anti-discrimination laws.”

    The fine amounts were adjusted in 2008 to reflect $110 as the minimum and $1100 as the maximum for “technical violations” which includes clerical errors.

    There is also no part of the law that says the form must be completed in the same color ink, this again would be considered a “best practice” to avoid the appearance that the form was altered at a later date. The law allows form to be completed within 3 days of hire which means “technically” Section 1 and Section 2 may end up being completed on different days. For example a new hire “forgot” to bring a work authorization document on day one but produces it on day 2. The HR manager can complete Section 2 on day 2 and still be within the law. They may pick up a black pen instead of the blue pen that was used on day 1 – it doesn’t matter and it isn’t against the law. Yes, it may “flag” the form with the ICE agent to look at it more closely to be sure they beleive it truly was completed on day 2 but it isn’t illegal to use a different color pen.

    Some of the things DeeDee points out are a great reason for a company that is being audited to engage an experienced employer sanctions consultant or immigration attorney to represent them with ICE. If the basis for a fine from ICE is using different color ink on a form, the burden of proof for ICE is to prove the form was altered after it was completed or not completed within the 3 day time period. It is not against the law to use different colored ink but it is against the law to alter the form or not complete it within 3 days of hire. A good attorney should be able to make that argument and have the fine for that particular form dismissed or reduced.

  • http://www.peoplescare.org Della

    I’m confused. If audited, we need to have documentation. However, the report states we are to keep I9s for three (3) years after hired and one year after if terminated. If the employee is still employed after 3 years and we get audited and the form was discarded what proof do we have? Am I reading this wrong or misunderstanding the statement?

  • Mary Ann

    Attorney’s suggest conducting an internal audit to correct any errors that are found – What is the proper way to correct errors? Should a new I-9’s be prepared? How do you correct an original I-9 that is over-documented (too many documents listed)?

    Did anyone answer this?

  • DMHR

    I know that we’ve closed the book on this article but I just started an ‘in house’ audit and have a question. I’ve come across a few copies of SS Cards that state: “For social security and tax purposes-not for identification”. My first thought is that this should not have been used as a form of proof of ID. Is this correct or is it ok to leave them as they are?

  • mkh
  • http://www.I-9Okay.com Camille

    The Social Security card is never used as a form of ID, it is a List C item which is a work eligibility document. Some SS cards actually say “not valid for work”, those would be unacceptable as a List C document.

    If the cards in questions were accepted as ID documents then you have not fulfilled your responsibility in completing the I-9. You must inspect an acceptable ID from List B AND an acceptable work authorization document from List C and the document information must be recorded in the correct place in Section 2 of the I-9. Alternately, you may accept one document from List A which proves both ID and work eligibility.

    If during the audit you discover the incorrect documents were accepted as ID it is appropriate to “re-do” the I-9 either by marking one line through the error and recording the correct information or by having the employee complete a new I-9, you should inspect and record the correct documents, and staple it to the “old” I-9 for storage.

    The website http://www.I-9okay.com has a great FAQ page about I-9 compliance.

  • DMHR

    Thanks for the info. I’ve never seen a SS Card that said ‘not valid for work’. Thanks again.

  • http://www.I-9Okay.com Camille

    Della,

    You may choose to repair I-9s with errors or complete a new I-9, it is your choice. If you choose to repair remember to make the correction by drawing a single line through the error, making the correction, initialing and dating the change. Never change information in Section 1 as this is information to be completed by the employee. You may request the employee make a change in Section 1 following the same process of drawing one line through the mistake and initialing and dating every correction. If you choose to complete a new I-9, be sure to keep the old one too.

    Having an I-9 expert conduct the audit or at the very least receiving training from one may be a good action step for you and your company. Many in house audits result in issues related to repairing forms, discrimination, and ultimately result in mistakes that will cost an employer when audited by ICE. Visit http://www.I-9okay.com for information about training and expert audits.

  • DMHR

    I have only been with this company for 5 months and while doing the I-9 audit, I’ve noticed that the previous corrections made were done so by using white-out. Do I need to complete a new form for each of those? Anytime a new DL was brought to the HR Coord, she would white out the previous exp date and write the new one on the I-9.

  • Glenn

    Until we have Americans that are willing to work these low-end jobs what is an employer to do? You hire somebody to do a job and after 3 days they walk off the job because they think they are to good for this kind of job. Or better yet they come right out of High School and want to make $12 an hour. What a joke! The employer needs these jobs done. As long as the government pays people to set at home and do nothing the employers should be able to do what ever he can to keep his business running, and to keep other Americans in jobs. It’s not greed, it’s not wanting to lose their investment. Stop Welfare and make them work and there would be no hiring of “undocumented workers”.

  • Rhonda

    how would you fix the mistakes that show a date in section 2 that is beyond the 3 business days?

  • April

    Is there any restriction on using a red pen to fill out the I-9s?? (can anyone provide a source for this?)

  • Angela

    Hi April,

    I don’t believe there are any restrictions on using any color pen. I haven’t been able to find anything. You could double check the Handbook for Employers, which can be found at the USCIS website (copy link below).

    http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31b3ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD

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