What Are the Most Common Mistakes Employers Make with Regard to Form I-9 Compliance?

Employment verification is a complex task that presents challenges for companies of all sizes. Here, founding attorney Nick Oberheiden, PhD answers some important questions about I-9 compliance.

Oberheiden P.C. is a national compliance and defense law firm that represents employers of all sizes with regard to employment verification compliance. This is a complex area of the law that has come to the forefront in recent years, as Immigration and Customs Enforcement (ICE) has ramped up its efforts to target employers that fail to comply with the law.

Our founding attorney, Dr. Nick Oberheiden, routinely represents businesses across the United States in ICE I-9 audits and inspections as well as U.S. Department of Homeland Security (DHS) investigations targeting the employment of undocumented workers. Here, Dr. Oberheiden answers some important questions about mistakes employers need to avoid in relation to I-9 compliance:

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Q. What Are Examples of Some “Best Practices” for I-9 Compliance?

Most importantly, I recommend that employers have written policies and procedures in place to ensure I-19 compliance. This includes an I-9 manual that serves as a “go-to” reference source for the company’s human resources (HR) representatives. The I-9 manual should cover several different policies and procedures.

For example, the I-9 manual should specify that all I-9s should be stored in three separate binders: one binder for all current employees that do not require reverification, one for current employees that require reverification, and one for terminated employees. The I-9 manual should also provide guidance for staff training and internal audit schedules (or “checkups”) to ensure compliance on an ongoing basis. All employers must remember that they are responsible for complying with the law and that being unaware of the steps that are required to ensure compliance will not serve as a defense in the event of an ICE or DHS audit or investigation.

Q. What Are the Benefits of Periodically Performing an Internal I-9 “Checkup”?

Similar to purchasing insurance, periodic internal I-9 “checkups” conducted pursuant to a written I-9 compliance policy can have a significant return on investment (ROI) over the long term, and they can do this in a number of different ways.

For example, conducting period checkups affords the opportunity to identify and correct any technical violations. By proactively addressing potential liabilities in their HR files, not only can employers lessen their risk of being fined, but they can also establish a “good faith” defense in the event that ICE issues a Notice of Intent to Fine.

This, along with numerous other examples, affords employers the ability to mitigate their liability risk without having to defend against potentially-serious allegations from ICE or DHS. For the best outcome, employers should approach I-9 compliance as an ongoing process, and they should not wait for ICE or DHS to identify violations prior to undertaking remedial measures.

Q. When Performing I-9 Checkups, What Should Employers Be Looking For?

When performing an I-9 checkup, the primary goal is to identify any mistakes that need to be corrected. The list of potential mistakes is extremely long, but some of the most-common errors to look when examining your company’s I-9 forms are:

• Signature issues such as I-9s being signed before or after the hire date
• Failing to complete Section Two
• Not entering the name of the employee in Section Two of the I-9
• Entering the employee’s birth date where the signature date belongs
• Accepting too many documents
• Accepting documents that do not reasonably appear legitimate or that may not relate to the employee being verified
• Accepting faxed or scanned documents
• The HR department’s use of pre-populated I-9 forms

These, of course, are only some of the problems that can be identified by a checkup (not all of which can be fixed). When considering what to do when issues like these are uncovered, it is important to keep in mind that any after-the-fact changes to an I-9 should be made only after careful due diligence and training, and preferably after consultation with the company’s legal counsel. That said, another all-too-common mistake that employers make – and that can compound their potential liability – is to fail to address any compliance issues they identify.

Q. Are there I-9 Discrimination Issues of Which Employers Need to Be Aware?

Various federal laws prohibit discriminatory practices in the recruitment, hiring, and employment eligibility verification processes for individuals who are authorized to work in the United States. Due consideration of these anti-discrimination laws should also factor into the development of employers’ written policies and procedures.

Generally, employers should treat all people the same during the hiring and employment verification processes. This means that employers should not demand that certain employment candidates provide additional or different documents from those required for purposes of I-9 compliance. Additionally, employers should adopt consistent policies for accepting original documents if they appear reasonably genuine and relates to the employee.

Employers should base their termination decisions on non-discriminatory factors as well. This means that employers should base termination decisions on job performance and not on employees’ personal characteristics, including their name, accent, appearance or citizenship status.

When thinking of these issues, it is also important to keep in mind that certain states, like California, have additional protections related to using E-Verify before an offer of employment can be made to an employment candidate. Finally, employers must ensure that their I-9 binders are only accessible by specific HR staff. Employees’ supervisors and managers should not have access to their I-9s because employees’ national origin, immigration status, and other protected information may be gleaned from these documents and subsequently used to make discriminatory employment-related decisions. Employers should be proactive in protecting confidential information that, if revealed, could serve as the basis for an employment discrimination claim.

Q. Can an Employer Destroy an Employee’s I-9 After His or Her Job is Terminated?

Form I-9 retention schedules can be confusing, and this is another reason why employers need to have comprehensive written I-9 policies and procedures in place. As a general rule, I-9 forms must be retained for three years after the date of hire or one year after the date of termination, whichever is later. What this means is that current employees should always have a Form I-9 on file; and, upon termination, the employer need to calculate how long it must retain the employee’s I-9.

Periodic training of HR personnel can lessen the risk of Form I-9 retention mistakes. For example, a common mistake that HR personnel make is shredding an employee’s I-9 one year after the employee is terminated when the employee was only employed for one year. In this scenario, the I-9 must be retained for two years post-termination, for a total of three years from the date of hire. Proper procedural protocols and appropriate training can prevent this kind of mistake; and, while this kind of mistake may seem relatively innocuous, it can lead to substantial liability in the event that ICE agents unexpectedly show up at your company’s offices.

Q. Are There Other Practical Recommendations that Employers Can Implement to Improve Their I-9 Compliance?

While some processes may be better suited to certain businesses, there are many common-sense procedures that can be implemented for little or no cost. For example, an employer can assign one HR representative the task of reviewing all forms completed by the HR department. Simply put, people are less likely to recognize their own (and oftentimes repeated) errors. These errors can be compounded by time, so it is better that the employer designate one individual to review others’ work.

Another easy step that employers can take is to create automated reminders to reverify the employment eligibility of employees whose work authorizations are set to expire during their terms of employment. Setting these reminders with plenty of lead time will ensure that employees do not become unverified—a serious issue that can lead to substantial penalties in ICE and DHS audits and investigations.

Of course, employers also need to ensure that they are using the correct I-9 form. The newest edition of the Form I-9 is dated October 21, 2019, but will not become mandatory until May 1, 2020.

Finally, as long as the retention period has expired, employers can avoid wasting time auditing I-9s that are no longer required. Reviewing less records will afford the opportunity to put more effort into reviewing the records that actually need to be reviewed.

Q: What Else Do I Need to Know?

These are only some very general suggestions, and this should not be construed as a list of recommendations or “best practices” for all employers. In all cases, we recommend that employers develop highly-customized I-9 compliance policies and procedures and that they effectively implement their policies and procedures with the help of experienced legal counsel.

Contact the I-9 Compliance Lawyers and Consultants at Oberheiden P.C.

At Oberheiden P.C., our federal lawyers and compliance consultants help employers nationwide meet their I-9 collection and recordkeeping obligations, and we provide experienced legal representation for all ICE and DHS matters. If you have questions or concerns, we invite you to call 888-680-1745 or contact us online for a complimentary initial consultation.