The Importance of Conducting a Form I-9 Audit—Even If Your Business Does Not Employ Non-U.S. Workers

Sponsored by HRdirect Smart Apps

By Jaime Lizotte

If your business employs workers who are not U.S. citizens, it’s important to make sure you are in compliance with federal law by maintaining accurate employment records.

Completing the Form I-9 properly is the most important aspect of immigration compliance. When done correctly, your completed I-9 forms are your best proof of compliance—and your key defense against government fines and lawsuits.

However, even if all of your employees are legally authorized to work in this country, you can still face stiff penalties for maintaining inaccurate or incomplete I-9 forms.

A self-audit can go a long way toward minimizing fines and risks of liability for immigration law violations. The main objectives of an I-9 self-audit are to

• Identify and fix mistakes and omissions;
• Eliminate records you no longer are required to maintain;
• Ensure you are not inadvertently employing an undocumented worker.

The audit process

First, check that you have a Form I-9 for every employee currently hired after November 6, 1986. Then, review each I-9 to make sure all information is complete (including basic information, such as your business name and address).

Then, check each form to make sure you have reviewed and recorded the proper combination of List A, B, and C documents (one item from List A, or a combination of one item from List B and one item from List C). Make sure you have not recorded (or filed copies of) more, or different, documents than required.

And lastly, if you keep photocopies of identification documents presented by employees, be consistent and make sure you have copies for all employees. Check expiration dates of documents listed in Section 2 (and work authorization status in Section 1) and make sure reverifications are tracked and completed on time. You do not need to reverify documents for U.S. citizens or permanent residents. You only have to recheck expired documents for foreign workers with temporary residency.

Purge unnecessary I-9 forms

Discard forms you are no longer required to keep under the three-year/one-year retention rule. You must keep a Form I-9 for each employee either for three years after the employee’s first day of work or for one year after the employee’s last day of work, whichever is later.

You should, therefore, have an I-9 form on file for every current employee hired after November 6, 1986, as well as for employees who recently left the company. Here’s an example:

An employee was hired on 4/1/16 and terminated on 8/1/17.

Step 1: Identify the hire date and add three years.
4/1/16 + 3 years = 4/1/19

Step 2: Identify the termination date and add 1 year.
8/1/17 + 1 year = 8/1/18

Step 3: Compare the two dates.
Compare 4/1/19 and 8/1/18

Result: The later date is 4/1/19. Therefore, in this case, you must retain the Form I-9
until April 1, 2019.

What to do if you uncover a problem

When conducting an I-9 self-audit, you may find that:

You are missing a Form I-9 for an employee. In this case, ask the employee to complete Section 1 of the Form I-9 immediately and present documentation as required in Section 2. The new form should be dated when completed—never backdated.

An employee has been working without documentation authorization. This could be because an I-9 form was not properly completed in the first place, or because the employee’s work authorization has expired. If this is the case, notify the employee (in private) of the discrepancy.

You should provide the employee a copy of the Form I-9 and any accompanying paperwork. Then ask the employee to provide correct or updated documentation. In either case, if an employee cannot present proper documentation, you should terminate the employee immediately. If you don’t, you risk penalties for “knowingly” continuing to employ an unauthorized worker. Be sure to apply this strict termination policy consistently to avoid potential claims of discrimination.

Correcting I-9 errors

You may not correct errors or omissions in Section 1 of the form. If you discover a problem in Section 1, ask the employee to make the correction. Employers may only make changes in Section 2 or Section 3 of the Form I-9.

Employees needing assistance to correct or enter information in Section 1 can have a preparer and/or translator assist them.

In either case, the individual making the correction should

• Draw a line through the incorrect information;
• Enter the correct or omitted information;
• Initial and date the correction or added information.

Ease the burden

Consider using an online tool to verify the identity and employment eligibility of new hires. An electronic HR solution can speed up the time required to complete new employee forms—and help you comply with federal filing requirements.

About the Author

Post by Jaime Lizotte

Jaime joined the product development team at ComplyRight in 2007. Since then, she has managed and developed numerous HR solutions, from training tools and safety products to HR and tax reporting software.

Before joining ComplyRight, Jaime was a practicing HR Manager at a small marketing firm. Her hands-on experience as an HR practitioner gives her unique insight into the day-to-day challenges of small business employers as she develops next-generation products to make employee management easier.

Company: HRdirect Smart Apps
Website: www.hrdirectapps.com
Connect with me on Facebook, Twitter, and LinkedIn.

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