In a Paycor webinar on Form I-9 compliance, HR expert Becky Becker gave attendees great insights into the risks facing employers who don’t pay enough attention to their employment eligibility verification obligations. If you think this might mean you, don’t panic. Following is information about completing Form I-9 as well as some of the most common Form I-9 errors and how to correct them. If you don’t have time to watch the full webinar, we’ve put together these I-9 FAQs you need to know now to ensure employees fill out the I-9 form correctly.
What is the purpose of Form I-9?
The purpose of Form I-9 is to ensure employers are only hiring people who are legally allowed to work in the United States.
When were I-9s first required?
I-9s were created by the passing of IRCA, the Immigration Reform and Control Act, which became law in 1986. This law created two primary obligations for employers:
- Employers must not knowingly hire undocumented workers or continue to employ them after learning of their undocumented status.
- Employers must verify employment eligibility through Form I-9. This requirement applies to every employee, full- and part-time, regardless of citizenship or immigration status, except for those hired before November 7, 1986.
What is the current Form I-9?
The current Form I-9, dated 08/01/2023, is available on the U.S. Citizenship and Immigration Services website. The latest form was made mandatory as of November 1, 2023.
What changes were made to Form I-9 for 2024?
Per the USCIS, changes for 2024 include:
- Reduced Sections 1 and 2 to a single-sided sheet
- Fillable form on tablets and mobile devices
- Moved Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary
- Moved Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required
- Revised the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation
- Reduced form instructions from 15 pages to 8 pages
- Included a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination
Additionally, the new form includes instructions for employers to find examples of many documents in the Handbook for Employers (M-274).
What documents are considered acceptable receipts for Form I-9?
New acceptable receipts that can be temporarily presented until new official documents are available include:
- Receipt for a replacement of a lost, stolen, or damaged List A document
- Form I-94 issued to a lawful permanent resident that contains an I-551 stamp and a photograph of the individual
- Form I-94 with “RE” notation or refugee stamp issued to a refugee OR
- Receipt for a replacement of a lost, stolen, or damaged List B document OR
- Receipt for a replacement of a lost, stolen, or damaged List C document
Who must complete Form I-9?
The form should be used for all new hires and rehires. Existing employees should not complete a new Form I-9 if they have a valid I-9 already on file.
How did COVID-19 change I-9 compliance?
In March 2020, the Department of Homeland Security relaxed its standards for in-person I-9 verification, due to COVID-19.
Here’s what the changes involve:
- Employers with any employees working remotely aren’t required to review employees’ identity and authorization documentation in person. This change originally only applied to workplaces where all employees are remote; however, DHS extended flexibility to employers who have both in-person and remote employees.
- Employers may inspect Section 2 of the document remotely (for example over video, fax, or email) within 3 business days of hiring.
What if employees always work remotely?
Verifying remote employees has long been a struggle for employers and it’s only going to continue as more businesses switch to a remote-first workforce.
Common workarounds include:
- Using a remote company representative, a trusted agent, or lawyer
- Allowing two remote employees to verify each other’s documents
- Inviting remote employees for on-site training and verifying documents then
What are the penalties for I-9 violations?
Penalties for incorrect or missing I-9 forms can be imposed by ICE, the U.S. Immigration and Customs Enforcement agency. The penalties for I-9 violations have recently increased. The size of penalties depends on several factors including company size and number of violations. The range of possible penalties now stands at:
- For I-9 paperwork violations, the penalties range from $272 to $2,701 for the first offense for substantive violations or uncorrected technical errors.
- For recruiting, referral, and rehiring unauthorized non-citizens violations, the penalties range from $676 to $5,404 for first offenses for each knowingly employed unauthorized workers.
- The penalties range from $5,404 to $27,108 for second and subsequent offenses
If employers try to trick ICE, or ignore credible warnings, they risk serious fines. Companies can also be punished for “subsequent offenses” even if their prior punishment wasn’t in the recent past.
What are an employer’s responsibilities when completing Form I-9?
The good news is HR teams aren’t expected to be detectives. You don’t have to put every document under a blacklight. Employers must accept original I-9 documents that reasonably appear to be genuine and relate to the individual presenting the document. See more about I-9 compliance here.
What is the purpose of Section 1 of Form I-9?
Section 1 of the I-9 must be completed by the employee on or before their first day of employment. (Paycor Onboarding enables employees to fill their details in online before their first day, to avoid any issues.)
This section asks employees if they are a U.S. citizen and whether they are authorized to work in the country. An employee must fill in their:
- Name
- Address
- Date of birth
- Social Security number
- Email address
- Phone Number
- Citizenship status
- Work Authorization status if applicable
Employers must ensure that employees sign their name and date the form. Any missing information could result in a violation.
What are common errors in I-9 Section 1?
Frequently spotted errors in the first section of the I-9 include:
- Failure to complete Section 1
- Unchecked box for immigration status
- Lack of proper signature or date
- No full address
- Missing Social Security number (if using E-Verify)
What is the purpose of Section 2 of Form I-9?
Section 2 is the employer’s responsibility. It must be completed within 3 business days of a hire (i.e., if an employee starts on a Monday, Section 2 must be completed by Thursday). Pro tip: write the company name and ID on the top of every document, in case they get separated.
Get familiar with the following lists of acceptable documents:
- List A (“Documents that establish both identity and employer authorization”)
- List B (“Documents that establish identity”)
- List C (“Documents that establish employment authorization”)
Employers or an authorized representative must:
- Examine acceptable document(s) that establish the employee’s identity and employment eligibility.
- Not accept expired documents (although soon to be expiring documents are OK). A receipt for a new Social Security card is an acceptable document, but the new card must be shown within 90 days.
- Fill in document title and number, issuing authority, and expiration date in List A or Lists B and C.
- Fill in first date of employment.
- Certify examination of document(s) with signature, name of company rep and company information.
What are common errors in I-9 Section 2?
Frequent mistakes found in Form I-9 Section 2 include:
- Failure to complete List A or Lists B and C.
- Failure of company representative to sign Section 2.
- Failure to complete and sign form by 3 days after first day of employment.
- Over-documentation (e.g., completing List C despite a satisfactory List A). This could trigger an investigation by the Immigrant & Employee Rights team within the Department of Justice as it may show the intent to discriminate.
What is the purpose of Section 3 of Form I-9?
Section 3 is now called Supplement B, Reverification and Rehire and is also the responsibility of the employer. This supplement relates to re-verification of expired documents. Usually, this section will be left blank. Re-verification is not required for permanent residence cards, green cards, passports, or drivers’ licenses. If re-verification is required and an employer doesn’t do so, then they are knowingly employing an undocumented worker.
Acceptable documents that need to be re-verified:
- Employment Authorization Document (EAD)
- Visas
What should employers do if an employee has used a false ID for I-9 verification?
If an employee reveals that they do not have authorization to work or they have provided false documentation, their employment must be terminated. However, if they prove that they now have the correct documentation and their status has been “regularized,” an employer can continue their employment, even if they originally provided false documentation. The employer should complete a fresh I-9 with the new documents and attach it to the old Form I-9 with a signed and dated explanation.
Beware: If your company has an honesty policy, it should be applied consistently. If you have previously terminated employees when shown evidence of a lie, you may be forced to do this same in this case. Any inconsistency could imply discrimination.
What are common mistakes employers make during the I-9 verification process?
Here are some major no-nos for employers:
- Don’t ask job applicants to fill out an I-9 until an offer of employment has been made.
- Don’t accept photocopied documents.
- Don’t tell employees which documents to present (even if you’re just trying to be helpful).
- Do not accept an expired document.
Who is responsible for correcting errors on I-9s?
Errors on Forms I-9 should be corrected by the person who completed the form. So, Section 1 errors should be fixed by employees. Errors in Section 2 and Supplement B (formerly Section 3) should be fixed by the employer and ideally the same person who received the documents and signed the certification. If that person no longer works for your company, it’s easiest to fill out a new I-9 (unless only a small change is required).
How can employers correct I-9 mistakes?
When there are multiple errors, it’s best to complete a new form and attach it to the old copy. Attach a note explaining why the changes were made.
- If you’re adding missing information, add your initials and the date in a different color ink.
- If information has been written in the wrong list (e.g., a Social Security number is in List B or a driver’s license in List C) draw an arrow to the correct list and add initials and the date, again preferably in different color ink.
- If you’ve identified over-documentation, cross out unnecessary information and add initials and the date in a different color ink.
Should employers retain I-9 supporting documentation?
Federal law doesn’t require companies to keep copies of supporting documentation, though several state laws list specific documents that should be copied and kept.
Regardless of requirements, it’s always recommended to keep supporting documentation. Making copies and keeping them can help your case in the event of an ICE inspection. For instance, you may have forgotten to write down the expiration date of a driver’s license—keeping a copy of the license means this is only a technical, rather than substantive error, and you’d avoid a penalty.
Keeping supporting documentation will also help facilitate any internal I-9 audits you conduct.
When keeping documents, store them with I-9 itself, separate from personnel files. If you use E-Verify, you should also attach the Work Authorization document.
How long should employers retain I-9s?
Forms I-9 should be retained for all current employees. For former employees, they must be retained for 1 year from the date of termination or 3 years from the date of the original hire, whichever is later.
After the retention period has expired you can purge these documents, but make sure to always get a second opinion, so you’re never put in the position of having to explain to ICE why you accidentally purged the documents they are asking for.
Can ICE conduct an inspection without notifying an employer?
As I-9 documents are kept on-site, rather than sent to the government, federal agents can only conduct an inspection in-person or by requiring that you send them evidence through certified mail. This means you’ll always be informed of any inspection, and you’ll have at least 3 days to produce documents. In California and Oregon, employers are required to post notices for employees if an inspection is imminent.
Why should we conduct an I-9 internal audit?
Internal audits are the best way to determine your liability and uncover errors. This way, you won’t need to worry about an ICE Notice of Inspection. How often you should complete an audit depends mostly on your company size. If you operate in an industry with high staff turnover, like restaurants or manufacturing, you’ll likely require more regular audits than most.
Who should conduct a company’s I-9 internal audit?
Ideally, you’ll want to hire an immigration attorney or trained specialist to conduct your audit. If you keep the process in-house, make sure that the employee in charge of auditing your I-9 forms isn’t the same one who filled them out in the first place.
Why should companies have an immigration compliance policy?
Most companies will have a paragraph in their handbook about immigration compliance, but this just isn’t enough. Creating an official immigration compliance policy will help you act consistently and put you in the best possible position in the event of an unexpected Notice of Inspection from ICE.
If you’re creating an immigration compliance policy, here are the questions you want to answer:
- Who oversees immigration compliance? (This should be a specific name, rather than just “HR”)
- Does your company retain supporting documentation?
- Does your company use E-Verify? (In some states, this may be legally required)
- Who oversees your Form I-9 Retention Policy?
- Who should be contacted in the event of an ICE Notice of Inspection?
- What is your policy for working with outside contractors?
- Do you train employer representatives on completing I-9 forms?
- How often do you conduct internal audits?
- Who has access to I-9 records?
- Who is in charge of re-verification procedures for employees with Employment Authorization documents?
- Is everyone aware that there is zero tolerance for the employment of individuals who cannot comply with work authorization rules?
Paycor is not a legal, tax, benefit, accounting or investment advisor. All communication from Paycor should be confirmed by your company’s legal, tax, benefit, accounting or investment advisor before making any decisions.