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By: Kelly Eisenlohr-Moul
The Form I-9 appears simple. After all, what could possibly go wrong in populating one to two pages of fill-in-the blanks?
It turns out that an almost infinite combination of errors are possible—and all of them can subject an employer to liability, including administrative charges, complaints and fines from such varied agencies as Immigration and Customs Enforcement (ICE), the Department of Labor (DOL), the Department of Homeland Security (DHS), the Social Security Administration (SSA), and the Office of Special Counsel of the Department of Justice (OSC).
Gone are the days when the Form I-9 could be “phoned in” and forgotten in a dusty file. Instead, Forms I-9 now contain information submitted electronically via E-Verify to USCIS, the DHS, and the SSA.
In turn, those agencies have the power to share submitted information with ICE and/or the OSC. Submission of Form I-9 errors via E-Verify now results in an employer being “flagged” by one of the above-mentioned agencies, and placed on the short list for an audit.
As my great-grandmother loved to say, “an ounce of prevention is worth a pound of cure.” Below are the most common categories of avoidable errors resulting in fines to employers:
Section 1: Employee Errors
Many employers assume that they have no responsibility for errors or omissions on Section 1 of the Form I-9, as Section 1 is completed by the employee.
Unfortunately, ICE does not agree, and regularly fines employers for mistakes made by employees, including:
• Failure to check a box indicating immigration/citizenship status; • Checking two or more boxes offering contradictory immigration/citizenship status; • Checking a box indicating that they are a foreign national legally authorized to work, then failing to provide their authorization number; or • Failure to sign the attestation.
The good news is that these mistakes are easily avoided by training human resources staff to conduct a thorough review of Section 1 before filling out Section 2.
Section 2: Employer Errors
Most of the employer errors committed in Section 2 result from the failure to provide detailed information regarding supporting documentation. The most common are:
• Failure to indicate whether the employee utilized List A or List B/C documentation; • Failure to enter all the necessary information regarding the documentation utilized; • Use of improper/expired documentation; and • Failure to sign the attestation.
Again, training staff to be aware of these common issues is key. If possible, it helps to have a second human resources staff member review the completed I-9s before filing to ensure that they have been filled out appropriately.
Training & Prevention
Although most employers are aware that ICE conducts audits, they may not be aware that the federal government also provides free training webinars. Not only are these hour-long training sessions free, but they provide employers with ongoing insight into what the federal government focuses on when conducting an I-9 or E-Verify audit.
At the very least, every employer should conduct an annual audit of their Forms I-9. Correcting your Forms I-9 before an administrative audit could save your company thousands of dollars in fines and litigation expenses.
Stay tuned–our next blog post will discuss tips for conducting an internal I-9 audit each year.