['Human Resource Management', 'I-9s']
['I-9s', 'Audits - HR']
07/28/2023
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
If I-9s are lost, destroyed, or incomplete, employers need to fix these errors as quickly as possible. Missing information should be conspicuously inserted, initialed, and dated. The idea behind making corrections is not to erase them, but rather to show a good faith effort to abide by I-9 requirements. Employers must not try to hide errors. Doing so may lead to increased liability under federal immigration law.
Some of the more common errors on the Form I-9 include failure to fully complete the form, especially forgetting to sign the form or have the employee sign it. Employees might forget to record documentation in Section 2 of the form, or might forget to reverify an employee's work authorization (where required).
Unfortunately, while correcting errors on Forms I-9 is a good practice, it may not always save employers from fines. Mistakes on completed I-9s can't be retroactively corrected because the USCIS simply requires that the form be properly completed within three days of the employee starting work for pay. However, further violations may be prevented by immediately fixing problems, since an employer has an ongoing obligation to comply with the law. Doing so also shows an employer's good-faith efforts to comply with I-9 requirements. Nevertheless, it is better for the employer to find and correct any I-9 problems before a government agency does. Once an employer has made a correction, the only violation was a failure to properly complete the form within three days.
When an employee is still with a company, there is no paperwork error that can't be corrected (other than the failure to complete the form within three days of hiring). If the employee has been terminated, however, it may be impossible to correct errors or omissions discovered in an audit.
If patterns of errors are evident, employers should try to determine the root cause of the issue and correct it if possible. For example, perhaps hiring managers simply aren't recording the correct information, and a brief training session could prevent future problems. What follows is a chart of common I-9 errors and how to correct them. Before determining how to correct a specific I-9 error, however, employers should be aware of the following general notes on making corrections:
- When there isn't room to make a correction directly on an employee's current Form I-9, the employer may choose to make corrections on a new Form I-9 and attach it to the employee's original Form I-9. Employers should not use correction fluid on the Form I-9.
- Any time that the reason for a correction isn't clear based on the included initials and date, the employer should affix a note to explain the reason for the change.
- Any time a correction or reverification is required, the employer must make sure that the change is made on a current version of the Form I-9. If the employee's original Form I-9 is no longer the form that is valid for use, a new form must be used for the correction/update, and the employer must attach it to the employee's original Form I-9.
- Corrections made in Section 1 of the Form I-9 must be made by the employee.
- Corrections made in Section 2 or 3 of the Form I-9 need not be made by the same representative of the employer who originally completed the Form I-9 with the employee.
Correcting specific errors on the Form I-9
| Section 1: Employee Information and Attestation | |
| The problem | How to fix it |
| The employee did not complete a required field in Section 1. | Have the employee complete the required information and have him or her initial and date the change |
| The employee did not complete the "Other names used (if any) field. | Have the employee add any other legal names that he or she has used (if applicable) and initial and date the change. If the employee does not have any other legal names (this would include a maiden name), he or she should enter "N/A." This field is not meant for nicknames. |
| The employee recorded a P.O. Box in Section 1. | Have the employee cross out the P.O. Box and record a physical address. The employee should initial and date the change. |
| The employee did not record his or her Social Security number. | Unless the employer participates in E-Verify, the employer should do nothing. The Social Security number (SSN) is an optional field in Section 1. If the employer is an E-Verify participant, the employee should insert the SSN and initial and date the change. |
| The employee did not record an email address or telephone number. | These fields are optional in Section 1. Employees who choose not to supply the information should insert "N/A" in these fields. |
| The employee failed to sign and/or date the form. | Have the employee review the information he or she entered in Section 1 and then sign the form to attest to the validity of the information. The employee should initial and date the change. |
| The employee failed to check a box or checked the wrong box in the employee attestation section. | Have the employee identify the correct box and initial and date the change. If this cannot be done clearly on the employee's original Form I-9, a new form may be completed. The employer should attach the new form to the employee's original Form I-9. |
| No Alien Registration Number/USCIS Number was entered for an employee who selects "A Lawful Permanent Resident." | Have the employee write in the missing information and initial and date the change. |
| An employee who selected "An alien authorized to work until..." failed to enter required information. | Have the employee write in the missing information and initial and date the change. Note that not all aliens authorized to work (such as refugees and asylees) will have an expiration date for their employment eligibility. |
| The preparer/translator section was not completed. | If a preparer or translator was utilized, that individual should complete the preparer/translator certification block and initial and date the change. A note may be affixed to clarify that the information was initially omitted. |
| Section 2: Employer or Authorized Representative Review and Verification | |
| The problem | How to fix it |
| The employer failed to complete the document title, issuing authority, document number, or expiration date under List A, B, or C (where applicable). | First, the employer should make sure it is not requiring more information than necessary. If this is not the case, the employer should then consider that some documents may not have document numbers, and some won't have expiration dates. If information was truly omitted, however, a representative of the employer should explain the situation to the employee and ask to review the documentation again. The employer's representative should insert the missing information and must initial and date the change. |
| The employer made copies of the employee's documentation, but did not complete Section 2. | Employers who make a practice of photocopying employee's documentation are not relieved of the responsibility of completing Section 2 of the Form I-9. The employer should immediately request documentation from the employee and complete Section 2, initialing and dating the change. The photocopied documents will not suffice; employers must review original documentation. The employee should again be allowed to choose which document(s) to present from the approved documents lists. If the employee presents different documentation than was originally presented, the employer should make photocopies of the document(s) if it is still the employer's practice to do so. |
| The employer incorrectly recorded some of the employee's document information. | A representative of the employer should cross out the incorrect information and write in the correct data. Initial and date the change. |
| The employer collected documents from each of List A, List B, and List C, and recorded all of the corresponding information. | Employers need only examine one document from List A orone document from each of Lists B and List C. If the employer collected too much documentation, it should present the problem to the employee, ask him or her which documentation he or she would prefer to go with, and cross out the superfluous information. The employer should initial and date the change. |
| The employer neglected to date the certification portion in Section 2. | Add the date that the employee began working for pay, but initial and date the change to indicate that the information was initially omitted. |
| The employer's representative failed to sign in Section 2. | If the individual who examined the employee's documentation is available, he or she may complete the signature (certification) portion of Section 2. However, if the individual who examined the documentation is not available, a different representative of the employer should re-examine the employee's documentation (any documentation the employee wishes to provide) and complete Section 2 once again. This is best completed on a new Form I-9 (which would then be attached to the original form). The correction should be initialed and dated, and the employer should affix a note explaining the circumstances. |
| Abbreviations were used that aren't common or easily recognizable. | The employer should cross out the abbreviation and insert the full name of the document or issuing authority. The employer should initial and date the change. Well-known abbreviations such as "SSA" for the Social Security Administration or "VA DMV" for the Virginia Department of Motor Vehicles are acceptable. Other shorthand that may not be commonly known is not acceptable on the Form I-9. |
| Section 3: Reverification and rehires | |
| The problem | How to fix it |
| An employee's temporary work authorization expired but was not reverified. | The employer should immediately request current proof of work authorization from the employee. The employer should insert the required reverification information in Section 3 (only if the employee's original Form I-9 is still the form that is valid for use) and must initial and date the change. If the employee cannot present valid work authorization, the employer may not continue to employ him or her, though the employer may rehire the individual if he or she can later present valid documentation. |
| An employee's name has changed but was not recorded in Section 3 of the Form I-9. | Employers are not required to record a name change, though it can be a good practice. Where the employer wishes to record a name change, it should do so in Section 3 of the form at any time. Failing to do so immediately after the name change is not a compliance error. |
| The employer failed to record the document title, number, or expiration date for the employee's documentation in Section 3. | The employer should ask the employee for the documentation and should insert the necessary information. The employer must initial and date the change. |
| General errors | |
| The problem | How to fix it |
| Correction fluid was used on the Form I-9. | The employer should attach a signed and dated note explaining the situation, should make sure that the information on the form is legible, and should refrain from using correction fluid in the future. |
| The employee's Form I-9 was not completed within three days of the employee starting work for pay. | If the employee's form is still not complete, the employer should immediately complete a form with the employee, using current dates for signatures. The employer may want to affix a note acknowledging that the form was not completed in a timely fashion. A form not being completed within the required time frame is one compliance error that cannot be corrected. |
| Information on the Form I-9 is illegible. | If the illegible information is in Section 1, the employee should cross out the illegible information and insert the information legibly. If the employee is unable to legibly print the required information, a preparer may do it for him or her, but then must complete the preparer/translator portion of Section 1. If the information is in Section 2 or 3, the employer should make the corrections. Either party should initial and date the change. |
| The form that was completed for an employee was not a valid version of the form at the time it was completed. | The employer should work with the employee to complete a valid version of the Form I-9 and should attach it to the employee's original Form I-9. |
| Highlighting marks, hole punches, or rips or tears interfere with a person's ability to read the Form I-9. | The employer should complete a new form and attach it to the original, including a dated and signed (or initialed) note explaining the state of the original form. |
| An employee's Form I-9 is missing or was never completed . | The employer should work with the employee to complete a Form I-9 and should affix a note explaining that a routine audit revealed the missing document. |
| I-9 forms have been retained past their required retention period. | For former employees, I-9s must be kept for one year after an employee is terminated or three years from the date of hire, whichever is later . When an employer identifies I-9s that are past their retention period, the employer should destroy them immediately. There is no benefit to keeping I-9s for a longer period of time. In fact, an employer can be held responsible for compliance errors on forms that they could have purged. |
| The employer has completed a Form I-9 for a nonemployee. | Employers should not have I-9s for nonemployees (such as volunteers, independent contractors, or consultants). Employers that do have I-9s for these individuals should remove the form from their I-9 file and purge it. |
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['Human Resource Management', 'I-9s']
['I-9s', 'Audits - HR']
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.