I-9 Compliance: Common Mistakes and How to Avoid Them
San Jose Employment Immigration Lawyer
As any small business owner or human resources officer knows that employers
are legally bound to only hire individuals who are legally authorized
to work in the United States. A complicated legal framework has evolved to
ensure that employers follow this requirement and at its core is the Form I-9.
This form helps employers determine that the individuals they hire are
legally authorized to work in the United States. It is familiar to anyone
who has ever worked in the United States, or at least those who have worked
in the United States after 1986. New employees must complete this form
within three days of beginning employment, although this requirement is
slightly different when a person is hired for fewer than three business days.
Mistakes to Avoid
I-9 compliance is critically important to businesses, but the process is
far from intuitive. Read on for some frequent pitfalls found in audits
and discover the ways they can be corrected or avoided altogether. Remember
that these are only a sampling of mistakes that can occur and that it
is best to consult with an attorney to ensure
proper I-9 compliance.
Original Signature of Employee Missing
It may not seem obvious, but unless an employer has implemented an electronic
form I-9 with an electronic signature function, original handwritten signatures
must be provided and retained.
Employee Name Missing from Top of Page 2
This is one of the most frequent omissions we see. It is easy to overlook,
but it is important to remember that the employee’s name from Section
1 must be copied over to the top of Section 2, as indicated by the red
Company Certification Missing Authorized Representative’s Title
In order to be correct, the company representative completing the I-9 on
behalf of the company must include both their first and last name, company
address, and give their
full job title -- simply writing “HR” is in the job title space
is not enough.
Oftentimes employers forget to perform Section 3 reverification. Reverification
of employment eligibility must occur for every employee who checks the
box in Section 1 indicating that they are “an alien authorized to
work until” a specific date. For those employees, reverification
before the given expiration date given in Section 1.
Even when employment eligibility is reverified, it is often reverified
late. Reverification of employment eligibility must occur for every employee
who checks the box in Section 1 indicating that they are “an alien
authorized to work until” a specific date. For those employees,
reverification must occur
before the given expiration date given in Section 1. Employees should generally
be given notice that their employment authorization is about to expire
90 days before actual expiration, so that any steps which must be taken
to obtain an extension of employment authorization may be taken in a timely fashion.
Reverifying on the original I-9 form. When reverifying on the form used during the initial I-9 verification,
only Section 3 must be completed.
Reverifying on a new I-9 form. If reverification has already occurred in Section 3 of the original form,
or if the old version of the I-9 form (pre-May 2013) was used as the original
form, a new I-9 form must be completed for the current reverification.
However, only the second page needs to be completed and retained. In this
case, fill out the employee’s name at the top of Section 2, and
then complete Section 3.
Making Corrections to Your Form I-9
If you do make a mistake, how should you fix it? As a rule, white-out should
not be used. If you have used white-out, USCIS recommends attaching a
signed and dated note to the I-9 explaining what happened. In general,
employers may only correct errors made in Section 2 or Section 3 of the
I-9; you must ask your employee to correct any errors found in Section 1.
The best way to correct the form is to:
- Draw a line through the incorrect information,
- Enter the correct information; and
- Initial and date the correction.
The above points are only a sampling of the many errors that are often
made, even by businesses with the best of intentions. We recommend an
annual I-9 audit to ensure full compliance, and avoid any unpleasant surprises
down the line.
Retain a knowledgeable
Silicon Valley immigration attorney to help guide you through employer compliance issues and help prevent
detrimental mistakes. Call (408) 560-4622 to
schedule your consultation with our firm.