Are you prepared for an I-9 audit from the U.S. Citizenship and Immigration Services? The Immigration Reform and Control Act of 1986 (IRCA) was enacted to prevent individuals who are not eligible to work in the United States from performing work. The act requires employers to complete an I-9 form for each employee within three days of hire. Employers are required to ensure that all of their I-9s are properly completed and in order. If ICE discovers that you have missing employee I-9 Forms (or errors on them), heavy penalties can be assessed.
Performing your own I-9 audit is the best way to be prepared and ensure you are in compliance. Below are some simple steps you can follow:
Step 1: Gather All I-9 Forms you currently have
Create two files of I-9s:
- I-9 Forms (electronic or paper) for current employees.
- I-9 Forms (electronic or paper) for terminated employees.
Employers should compile a list of current employees for whom they do not have a I-9 Form. Current employees who have no I-9 Form on file are the highest priority, as their eligibility to work in the United States should be verified as quickly as possible. The next highest priority will be to review current employees’ I-9 Forms on file to ensure they have been completed properly. The lowest priority will be handling I-9s of terminated employees.
Step 2: Obtain Missing I-9s for Current Employees
All employees hired on or after Nov 6, 1986 are required to have an I-9 on file. Those who do not have an I-9 Form on file should be contacted and instructed to bring in proper documentation. Communication with the employees should be apologetic but firm. Establish a due date for employees to provide documentation. Typically 2-3 days is enough time and keeps it on everyone’s radar. However, some employees may not be able to find their documents. Certain receipts of documents may be acceptable for a specific period of time, generally 90 days, in lieu of the actual document. Be prepared and provide information to the employee for replacement of Social Security Cards, birth certificates, passports, etc. The following link has information on replacement of most vital records: https://www.usa.gov/replace-vital-documents.
If an employee does not provide the required documents within the appropriate time frame, the employer should either terminate his/her employment or place the employee on unpaid leave of absence. The employee should be informed that he or she may be able to continue work for the organization once he/she provides proof of eligibility to work in the United States.
Step 3: Audit current I-9 Forms for Current Employees
This step may be the most grueling and possibly the most important of the entire process. Check the following information in each section of the Form I-9:
- The name, address, other names used and date of birth must be completed.
- The employee must identify his or her immigration status and sign and date the form.
- The preparer or translator section is to be completed only if someone other than the employee completed Section 1 on behalf of the employee.
- The proper document and required information are entered into the appropriate fields.
- The documents listed must satisfy the requirement to provide both proof of identity and proof of eligibility to work in the U.S.
- The certification section must be completed, and a representative of the company must sign and date the form.
Section 3 (In most cases, Section 3 will be blank.)
- This section should be completed only if the employee’s work authorization expired or if the employee has been rehired. It can also be completed if the employee had a name change, but this is not required.
Please refer to the USCIS Handbook for Employers for detailed information on how to correct technical and substantive errors as some may require a new I-9, while other errors may be able to be corrected on the current I-9 Form. In general, employers can typically draw a single line through the incorrect information, enter the correct information and initial and date the correction. Follow this link to I-9 Central for additional information: https://www.uscis.gov/i-9-central.
Step 4: Correct Errors
As you work through each error, use the USCIS Handbook for Employers at the link above for guidance. Although not required, some employers choose to attach copies of the identification documents to the Form I-9. Aside from the E-Verify requirements to retain photocopies, an employer voluntarily choosing to retain photocopies must ensure that photocopies are kept for all employees. If you are an employer that participates in E-Verify and the employee presents a document used as part of the Photo Matching, you must retain a photocopy of the document he/she presents.
Step 5: Terminated Employee I-9 Forms
Employers are required to retain the I-9 forms of terminated employees for three years after the employee’s date of hire or for one year following the date of termination, whichever date is later. These I-9 forms should be kept in a separate file/folder/binder solely for terminated employees. Keeping these in date order will aid you when it comes time to purge these documents. Although it will not be possible to make all corrections of any errors found, you should still make a good faith effort in correcting any errors that you can.
Step 6: Complete the Audit
Document the process you followed and the changes (if any) you are making to your current process/procedures.
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