The Department of Homeland Security and its enforcement arm, Immigration and Customs Enforcement or ICE, is stepping up immigration compliance audits in the workplace. The construction industry in particular has been targeted for more enforcement effort. Today, the government’s enforcement efforts begin with an audit of your I-9 forms. In order to avoid severe penalties and the risk of criminal prosecution, prudent employers will periodically audit their I-9 compliance and correct paperwork problems. Here is how you do that.
The first step is to make a list of all employees that you have hired since the I-9 law was enacted on November 6, 1986. Your list should include last name, first name, date of birth, date of hire, and date of termination if any. If someone has worked for you on more than one occasion, your list should show each period of employment separately.
Next, you will want to calculate the applicable retention dates so that you can determine which forms you do not have to have on file. The law requires you to keep forms for three years from the date of hire AND for one year from the date of termination. Thus, the easiest thing to do is calculate the date that is three years prior to your audit and the date that is one year prior to your audit. If someone was hired prior to the former date AND terminated prior to the latter date, you need not retain the form for that person. If that is the case, cross that name off the list. What remains is a list of all workers for whom you need to have an I-9 form on file.
Now begin checking your I-9 forms to make sure that they are properly completed. As you review each form, put a checkmark next to that name on the list. If you are missing information on the form, fill it in. If you need the employee’s assistance to do so, call the employee in and ask the employee to sign or date the form as necessary. It is a good idea to put the words “self audit” next to any changes or additions you make to the form. If information needs to be changed, do not erase or obliterate the incorrect information or cover it up with correction fluid or tape. Instead, simply line through what is incorrect, and insert the correct information, writing in the margin if necessary.
If the certification in section 2 of the form was not signed or dated, then you will need to examine the employee’s identification and/or employment authorization documents in order to make the section 2 certification. Do not backdate the form or otherwise insert incorrect information. Remember, however, that a late but complete I-9 form is far better than a missing or incorrect form. It is far less likely that you will face severe penalties if you have all the forms you need to and they are filled out completely, even if some of them may be late.
Bear in mind that there are some forms that simply cannot be fixed. If section 1 of the form was not signed before employment commenced, or if section 2 of the form was signed more than three days after work commenced, there is simply nothing that you can do to fix a late completion problem. Similarly, if the employee did not attest to his or her citizenship status and is no longer employed, it is unlikely that you can determine this and fix the form.
Once you have reviewed and corrected all of your I-9 forms, go back to your list to see if you have any names that do not have check marks next to them. These are the persons for whom you are missing the form, and you should immediately take steps to get a new form completed. Again, a late form is better than not having one at all.
As you go through the correction process, be aware of recurring problems that might suggest the need for training. Remember also that you cannot simply attach photocopies of the I-9 documents to the form; the form itself must be properly completed.
It is often a good idea to establish a tickler file so that you can keep track of forms that will require reverification at some point in the future. Remember that you only reverify forms where the individual has presented an employment authorization document (List A or List C) with an expiration date, but that you do not reverify US passports or permanent residence (I-551) cards that have expired.
The easiest way to establish a paper-based tickler filing system is to use 15 manila file folders, labeling the first 12 with the months of the year and the last three with the next three years. You should then file the I-9 forms that need reverification according to the month/year when the employment authorization will expire. It is a good idea to work this file several months in advance by calling in the employees and reminding them (in person or in writing) that they need to present a new document before the current one expires in order to continue working without interruption. When an employee comes in and presents a new document for reverification, you should complete section 3 of the form by recording the document title, number, and expiration date if any. If there is no expiration date on the new document, file it with the rest of your forms in alphabetical order by last name. If the new document does have an expiration date, refile it in your tickler system.
You can also set up a tickler system for periodic purging of I-9 forms that you no longer need to retain. Use the same 15 folder system described above, only this time, file forms for terminated employees according to when you no longer need to keep the form. Remember that the retention test is three years from the date of hire AND one year from the date of termination. You should work this folder retroactively, so that you pick up last month’s folder and confirm that each form meets the retention tests and can be discarded.
Following these simple, practical steps will help ensure better I-9 compliance, which in turn, will help avoid severe penalties imposed by the government upon employers that do not do it correctly. In that regard, it is worth noting that ICE announced in late September that it had settled a case against a major retail clothing company for over $1 million -- a penalty assessed solely for I-9 paperwork violations. If you need help with I-9 compliance, contact a knowledgeable professional. It is probably not a good idea to call the government to ask for help because their help may take the form of an audit of your compliance.
Dave Whitlock is a partner at Elarbee Thompson, a labor and employment law firm in Atlanta, Ga. He has over 22 years experience in business immigration, compliance, employment counseling and training and is a frequent lecturer and presenter on best practices in employment-related topics. He can be reached at Whitlock@elarbeethompson.com.