Five Tips to Avoid Form I-9 Pitfalls

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Did you know that all industries, regardless of size or location may be exposed to worksite investigations by the government to ensure they are hiring authorized workers? No? Well pay attention – the US Immigration and Customs Enforcement (ICE) has stepped up enforcement efforts resulting in a dramatic increase in administrative fines imposed during an eight-year period, ranging from $0 (FY 2006) to more than $16 million (FY 2014)!

What can you do? Ensure that the Form I-9 is properly completed for all new employees verifying the employee’s identity and eligibility to work in the US. The failure to do so can make you ICE’s next target. Completing the Form I-9 becomes a challenge because there are very specific requirements that must be followed when engaging in the process. Here are five tips every employer should follow to avoid common Form I-9 pitfalls:

1.     Don’t Engage in Unfair Document Practices

An employer can expose itself to a document abuse claim if it demands that the employee provide specific documentation establishing his or her identity and work eligibility. An employer will also land itself in hot water if it does any of the following things:

  • Requests more or different documents than are required to verify employment eligibility;
  • Rejects reasonably genuine-looking documents; or
  • Specifies certain documents over others with the intent of discriminating on the basis of citizenship status or national origin.

If the employee provides more documents than required, the employer should return the unnecessary documents and not use them to complete Section 2.

2.  Apply Photocopying Policies Uniformly

An employer may, but is not required to (unless it is an E-Verify employer), copy the documents presented by an employee to establish his or her identity and eligibility to work in the US. If it is the employer’s policy to copy the documents, the policy should be applied uniformly and consistently with all employees. Only copying documents of employees of certain nationalities or citizenship may subject an employer to an unfair immigration-related employment practice charge. Remember to return the original documents to the employee as well.

3.     Review Documents of Remote Hires

With today’s technology it is becoming more commonplace for a business to hire new employees remotely. However, this becomes an issue for employers when the new hire needs to present his or her identity and work eligibility documents because employers need to actually physically examine the documents in the employee’s presence. A video conference or Skype won’t do.

So how can an employer that could be hundreds of miles away review the documents? Is the employer required to drive or fly to the employee? No. An employer may designate an individual to complete the form, such as a personnel officer, foreman or agent. An employer may also designate a notary public to act on its behalf. The designated individual is required to complete all of the necessary paperwork, including signing the form.

However, employers must be cautious when designating an individual to verify an employee’s eligibility for employment because the employer remains liable for any Form I-9 violations.

4.       Retain Form I-9 Documents

An employer must retain I-9 forms of former employees for three years from the date of hire or one year after termination, whichever is later. The forms must be stored separately from personnel records. Since the Form I-9 contains personal sensitive information of each employee, employers should have safeguards in place to maintain the confidentiality of these documents.

An employer also needs to store the forms in a location where it would be easy to retrieve them in the event of a government audit. Once the time period has passed in which an employer is required to retain the forms, the forms should be purged to avoid them being subject to a government audit.

5.       Make Corrections When Aware of a Mistake

Mistakes happen; no one is perfect. If an employer discovers a mistake or an omission it should not hide the mistake or ignore it because doing so could expose the employer to liability. Make the corrections in a conspicuous ink color and initial and date when the correction was made. Don’t use whiteout or try to cover up an error or omission. It also is a good practice to attach a note to the form briefly summarizing the reason for the change.

 

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