Five Things Every HR Person Should Know About the Form I-9
Although it includes nine pages of instructions and a lengthy handbook of over seventy pages, there are five things about the Form I-9 that every HR person should know to avoid severe penalties in the event of an audit by Homeland Security Investigations or ICE. While following the tips below will not necessarily eliminate the imposition of fines, we have learned through negotiations with auditors located in different parts of the United States that incorporating these best practices into an HR department’s standard procedures can make a world of difference in how an audit goes.
1. Always have the employee complete, sign and date Section 1 no later than the first day of employment and, if at all possible, complete Section 2 before the employee leaves HR that same day.
The most frequent fine levied on employers is for failing to complete the Form in a timely manner. This is an error that can never be fixed once the statutory timeframe is passed. Further, it is much easier to have employees fix Section 1 while they are still standing in your office, then it is to ask them to come back and make corrections.
2. Never accept more documentation than what is needed to complete the Form I-9, never fill out all 3 columns in Section 2, and never use abbreviations or shorthand for the document description in Section 2. Always make a photocopy of the documents presented by the employee with the completed Form I-9.
Although some advisors do not recommend retaining copies, it is clear that if the employer keeps copies for one employee, copies of supporting documents must be kept for all employees. We recommend making copies because if HR has copies of the documentation attached to the Form, corrections can be made during a self-audit to Section 2 of the Form without contacting the employee. ICE will treat certain violations as technical, rather than substantive, and give the employer an opportunity to correct the violation without fining.
3. Adopt procedures regarding the method by which Form I-9s will be completed, re-verified (as needed), and maintained, as well as a system to notify a designated HR position when a Form I-9 must be re-verified and when it may be destroyed.
Failure to re-verify expiring work authorizations will not only result in a Form I-9 fine, but also may result in a finding of knowing employment of an individual who is not authorized to work, which is an additional fine. Unauthorized employment can also be used to increase a Form I-9 fine by 5% per form.
4. Create a separate Form I-9 filing system and storage space, keeping Form I-9s for current employees separate from those for terminated employees.
Not only is it much easier to produce all of your company’s Form I-9s in three business days when they are stored in a single file, keeping information on employees’ nationality and/or citizenship status in their personnel file opens the employer to a claim of discrimination by an employee who is passed for promotion or otherwise treated differently than his or her peers.
5. Conduct periodic internal audits of all Form I-9s.
Such audits should, at a minimum, be conducted annually. The Department of Homeland Security recommends employers have annual external audits of their Form I-9 files. In addition, a continuing system of compliance review should be put in place – one of the most successful has been a system in which all Forms are reviewed by a second member of the HR department or a member of the legal department at the time of completion.
Obviously, the best way to avoid fines during an HSI Form I-9 audit is to have Form I-9s that have been prepared timely, completely and correctly. It is vital to not only ensure that the Forms are completed correctly for all new employees, but also that the Forms a company is required to maintain for current employees were completed correctly at the time of hire. For many organizations, such Forms were completed by employees who have long since left or acted under prior management, so their accuracy is not always guaranteed. In addition, the rules governing the Form have been interpreted differently over time, resulting in Forms that are no longer compliant with current guidance.
The success of an HSI audit and ICE enforcement action hinges on the agency’s ability to surprise a company. Employers who follow a number of best practices in completing Form I-9s are likely to be in a better position to correct errors and inappropriate practices and build a record of good faith operations and compliant policies.