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Keep Out of Hot Water with ICE: How HR Outsourcing Helps

Tonya Fletcher SPHR, SHRM-SCP
by Tonya Fletcher SPHR, SHRM-SCP on April 30, 2019

An I-9 Guide for Employers

The Immigration Reform and Control Act (IRCA) of 1986 requires all US employers to complete a Form I-9 (I-9) upon hiring a new employee to work in the U.S. The I-9 is used to verify an employee’s identity and work authorization. Employers must verify the employment eligibility of all new employees and are GettyImages-961159798prohibited from discrimination based on national origin or citizenship status. If the I-9 is not filled out carefully or thoroughly, substantial fines and potential government trouble could come into play.

The federal government uses E-Verify to supplement the enforcement of federal immigration law. E-Verify is required for federal contracts that contain a FAR E-Verify clause. Several states have also enacted laws that require employers to register and use E-Verify. If using E-Verify, the employer enters the employee’s information from the I-9 to create a case. When you outsource human resources management, this process is managed for you.

Whether you choose to outsource HR or handle HR tasks on your own, here’s what you need to know about the form and some of the common errors associated with it. Immigration and Customs Enforcement (ICE) enforces employer compliance with I-9 and E-Verify rules.

The I-9 Has Three Sections

  • Section 1 is to be filled out by the employee no later than the close of business on his/her first day of work. Although filled out by the employee, the employer is ultimately liable for proper completion of the I-9 and must make sure that Section 1 is properly completed.

  • Section 2 is to be filled out by the employer on or before the employee's third day of employment. The first day of employment does not count toward the deadline. Example: If an employee’s first day is Monday, then the employer has until close of business Thursday to complete Section 2.

  • Section 3 is used for name change, reverification or rehire purposes.

The I-9 should not be completed until after the job offer has been accepted. For persons hired to work for three days or less, the entire form must be completed no later than the first day of work for pay.

List of Acceptable Documents

Employees choose which documentation to present from the List of Acceptable Documents.

  • List A documents establish both identity and authorization.

  • List B documents establish identity only.

  • List C documents establish work authorization only.

The employee must present unexpired, original documents to prove identity and work authorization. The employer must ensure they examine an original document, the document appears genuine, and it relates to the employee. If the employer is hiring a remote employee, they may designate an authorized representative, such as a notary public, to view the employee documents and complete Section 2. In certain circumstances, the employee may provide a receipt in place of an acceptable document.  A receipt only temporarily satisfies the document presentation requirement.

Copying documents presented by the employee is permitted and shows compliance. If you do not participate in E-Verify, you are not required to make and retain copies. Whether or not copies are made should be a consistent process followed with all employees.

If the employee has a legal name change, or they were rehired within three years of the date of the original I-9, the employer completes Section 3. Additionally, if there is a reverification, it is best to send a reminder to the employee in advance that they will be required to present a List A or List C document showing continued employment authorization.

I-9 Violations Include:

  • Knowingly hiring or continuing to employ unauthorized aliens

  • Paperwork errors

  • Discrimination

A form of discrimination is “document abuse.” This happens when employers or HR managers pre-screen potential hires or request more or specific documents from certain employees. For example, a case of document abuse would be requiring those who appear foreign to show specific work documents, but allowing U.S.citizens to provide the I-9 documentation that they choose.

Common I-9 Errors Include:

  • Accepting documents that are not listed as acceptable

  • Failing to list other last names in the designated box (creating a Social Security number mismatch)

  • Entering the date the I-9 is filled out rather than the birthdate in the birthdate box

  • Checking more than one citizenship box

  • Failing to sign and date the form

  • Failing to include all document characters including alpha and numeric

  • Listing documents in the incorrect columns

Click here to read other common I-9 mistakes and how to avoid them.

Common I-9 Correction Errors Include:

  • Using white out

  • Failing to initial or date corrections

  • Concealing changes

  • Recording documents in the wrong place

  • Re-verifying things that should not be reverified such as lawful permanent resident cards (“green cards”)

Correcting Form I-9

Employers may only correct errors made in Section 2 or Section 3 of Form I-9, Employment Eligibility Verification. If you discover an error in Section 1 of an employee’s Form I-9, you should ask your employee to correct the error.

To correct the form:

  • Draw a line through the incorrect information.

  • Enter the correct information.

  • Initial and date the correction.

To correct multiple recording errors on the form, you may redo the section on a new Form I-9 and attach it to the old form. A new Form I-9 can also be completed if major errors (such as entire sections being left blank or Section 2 being completed based on unacceptable documents) need to be corrected. A note should be included in the file regarding the reason you made changes to an existing Form I-9 or completed a new Form I-9.

A new I-9 (attached to the original) should be completed if the current I-9 is invalid, if it is so flawed it does not make sense, and if the employer believes there might be a substantive violation, i.e. the documents are suspect. I-9s must be kept for three years from date of hire or one year after termination of employment, whichever is later. I-9s should be stored in a separate file. Click here for an I-9 handbook for employers.

When you outsource HR to a Professional Employer Organization (PEO) like FrankCrum, you gain a team of dedicated HR experts who help you manage employee onboarding and all other aspects of the employee life cycle. PEOs also provide risk management services, benefits administration, workers’ compensation insurance and payroll solutions. Whether you run a small business or have your own HR team, outsourcing HR or extending your team with added HR services gives you peace of mind as your business grows.

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Tonya Fletcher SPHR, SHRM-SCP
Tonya Fletcher SPHR, SHRM-SCP

Tonya is the Labor Compliance Manager at FrankCrum. In this role, she leads the FrankAdvice team of HR consultants and manages the delivery and content of best practice HR information to client owners and managers. When she’s not at work, Tonya enjoys international travel.