There are many common mistakes and human errors that can be made while completing and maintaining I-9 records. If an employer fails to complete or maintain I-9 documentation correctly, that employer may fall out of compliance with Immigration and Customs Enforcement rules and suffer harsh financial penalties. This list shows the most common mistakes that employers make at the time of completing or maintaining I-9 forms:
1. Failing to require U.S. citizens to complete Form I-9: While citizens and noncitizen nationals of the United States are automatically eligible for employment, they too must present the required documents and complete a Form I-9. U.S. citizens include persons born in the United States, Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth of the Northern Mariana Islands.
2. Specifying which documents to accept for verification: Your employee may choose which document(s) he or she wants to present from the Lists of Acceptable Documents listed on Form I-9. You must accept any document (from List A) or combination of documents (one from List B and one from List C) listed on Form I-9 that reasonably appear on their face to be genuine and to relate to the person presenting them. To do otherwise could be an unfair immigration-related employment practice in violation of the anti-discrimination provision in the Immigration and Nationality Act. Also, please be mindful that individuals who look and/or sound foreign must not be treated differently in
the recruiting, hiring, or verification process.
3. Failing to Reverify an employee when his or her employment authorization expires: To continue to employ an individual whose employment authorization has expired, you will need to reverify him or her in Section 3 of Form I-9. Reverification must occur no later than the date that employment authorization expires. You may want to establish a calendar call-up system for employees whose employment authorization will expire and provide the employee with at least 90 days notice prior to the expiration date of the employment authorization. You may not reverify an expired U.S. passport or passport card, an Alien Registration Receipt Card/Permanent Resident Card (Form I-551), or a List B document that has expired. Also, if an employee has had a legal change of name, such as following marriage, you must record the employee’s legal change of name in the space provided in Section 3 of Form I-9. You should take steps to be reasonably assured of the employee’s identity and the veracity of the employee’s claim of a legal name change.
4. Refusing to hire persons solely because their employment authorization is temporary: You cannot refuse to hire persons solely because a person’s employment authorization is temporary. The existence of a future expiration date does not preclude continuous employment authorization for an employee and does not mean that subsequent employment authorization will not be granted. In addition, consideration of a future employment authorization expiration date in determining whether an individual is qualified for a particular job may be an unfair immigration-related employment practice in violation of the anti-discrimination provision of the Immigration and Nationality Act.
5. Failing to Properly Retain your I-9 Forms:Employers must retain an employee’s completed Form I-9 for as long as the individual works for the employer. Once the individual’s employment has terminated, the employer must determine how long after termination the Form I-9 must be retained, which is either three years after the date of hire, or one year after the date employment is terminated, whichever is later, which can result in a long retention period. If an employer fails to destroy I-9 forms after the outlined time frame, then that employer may be subject to fines.
6. Failing to Comply with the Three-Day Rule: Form I-9 must be fully completed within three business days of the date employment begins, or, in the case of an individual hired for fewer than three business days, at the time employment begins. If an employer fails to meet the three-day deadline, it could result in substantial fines.
Moreno Kostencki, P.A. offers free workshops on I-9 Compliance and Audits in order to provide your business with a compliance strategy to prevent I-9 errors and cure the ones you may already have. Be mindful that the Immigration and Nationality Act specifically authorizes DHS, OSC, and DOL to inspect Forms I-9. DHS, OSC, and DOL provide employers a minimum of three days’ notice prior to inspecting retained Forms I-9, and the employer must make Forms I-9 available upon request at the location where DHS, OSC, or DOL requests to see them.
For more information, feel free to contact E. Adriana Kostencki, Esq. at firstname.lastname@example.org
E. Adriana Kostencki, Esq.
Attorney at Law licensed to practice in Florida, U.S.A. and Venezuela
Moreno Kostencki Law Firm