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How to Conduct an I-9 Audit and Correct Form I-9 Mistakes

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HR Question:

I’m doing an internal audit of our I-9 Forms, and I want to make sure I’m doing it right. So far, I’ve run into some problems. Some forms are incomplete, I don’t have an I-9 for all employees, and I think that a document provided for one of them is fake. What should I do when I find Form I-9 mistakes?

HR Answer:

There aren’t always easy answers for how to handle situations that arise during internal I-9 audits. There is a lot of information to be captured, and there are portions on the I-9 forms that are easily missed. However, conducting regular audits of your I-9 forms and correcting them appropriately can significantly reduce financial and legal risks and keep you in compliance. We will share recommendations to help you through an I-9 audit and the correction process when you discover Form I-9 mistakes.

What to look for during an Internal I-9 Audit

As you review your I-9 Forms, it’s important to know what a fully completed form looks like. You should ensure the following in your review:

  • The information on the form is clear, legible, and easy to read.
  • The Employee section (section 1) is completely filled out either prior to the start date (but after an offer of employment has been made) or on the first day of employment. Ensure that the employee has dated and signed section 1.
  • The Employer section (section 2) is filled out within 3 days of the employee starting.
    • Documents are listed in appropriate sections (Either A only or B and C).
    • Date of hire is completed in the Certification section at the bottom of the form and matches the date in the payroll records.
    • Signature, date, and address of the company has been completed.
  • Highlighting marks, hole punches and staples do not interfere with an authorized official’s ability to read the information on the form.
  • Copies of the documentation retained with Form I-9 are legible if copies of documentation are made.
  • Abbreviations used are widely understood. Do not use an abbreviation that is not widely known.
  • All applicable sections of the form are completed.
  • The current version of the Form I-9 is used.  To determine whether you are using the correct version of Form I-9, look at the revision date printed on the bottom left corner of the form, and not the expiration date printed at the top of the form.  For your convenience, here is a link to the current version of the Form I-9.
  • The English version of the form should be completed unless the form is being completed in Puerto Rico. The Spanish version is approved for use only in Puerto Rico.

How to Make I-9 Corrections

If you come across Form I-9 mistakes, the USCIS (United States Citizenship and Immigration Services) has the following recommendations in making corrections:

Employers may only correct mistakes made in Section 2 or Section 3 of Form I-9, Employment Eligibility Verification. If you discover a mistake in the Employee section (section 1), you should ask your employee to make the correction.

To correct the Form I-9:

  • 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 need to be corrected, such as entire sections being left blank or Section 2 being completed based on unacceptable documents. 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.

If you discover a document that clearly looks fraudulent, or like it does not identify the correct individual, you should talk with the employee about it and ask them to provide alternate documentation from the list of acceptable documents.

On the other hand, if you only find a copy of a document that is hard to read, unclear, or confusing to you, no action may be required. The US Immigration and Customs Enforcement (ICE) guidance related to internal I-9 audits specifically states that an employer “should recognize that it may not be able to definitively determine the genuineness of Form I-9 documentation based on photocopies of the documentation. An employer should not request documentation from an employee solely because photocopies of documents are unclear.”

Rest assured – there are a number of resources available to help you with completing the Form I-9 correctly, and by conducting internal audits, you can make sure there are no Form I-9 mistakes. The U.S. Immigration Customs and Enforcement and the Immigrant and Employee Rights Section (IER) have provided joint guidance to help employers perform internal audits. Learn more about Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.

The USCIS also has an “I-9 Central” section of their website. You can find in-depth information on how to complete the form, make corrections, review descriptions of acceptable documents, and much more.

 

Employment recordkeeping does not rank high on the list of favorite human resources functions, but it is vitally important. Take the I-9 Form for example. Failure to complete this form on a new employee could result in a series of fines. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our HR Compliance & Recordkeeping Services to learn more, or Contact Us today.

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Medicare Part D Creditable Coverage Disclosure – Which Companies Must Comply?

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Question:

Medicare Part D Creditable Coverage Disclosure is due by March 1st.  How do I determine if this is something my company needs to comply with?

Answer:

It’s that time of year for many employers to disclose Medicare Part D Creditable Coverage status to the Centers for Medicare & Medicaid Services (CMS).  As a reminder, there are two disclosures required annually for certain employers related to Medicare Part D.  Employers with plans providing prescription drug coverage to individuals that are eligible for Medicare Part D must disclose whether their drug benefit is equal to or better than (also known as “creditable”) the Part D program to (1) individuals eligible for Medicare Part D and (2) to CMS.  The disclosure to CMS is due by March 1st for calendar-year plans.  At a minimum, disclosure to CMS must be made at the following times:

  • Within 60 days after the beginning of the plan year
  • Within 30 days after the termination of the prescription drug coverage
  • Within 30 days after any change in the creditable coverage status of the prescription drug plan

There are a few exceptions to the employer’s requirement to disclose Medicare D status to CMS, such as:

  • Employers not offering prescription benefits to any Medicare D eligible individuals on the beginning date of the plan year are not required to complete a disclosure to CMS form for that plan year.
  • Employers and unions that have applied and been approved for the Retiree Drug Subsidy (RDS) are exempt from filing the form. The exemption applies only to the covered members and plan options for which the employer is claiming the RDS. The plan sponsor’s RDS application will serve as disclosure to CMS.

Employers must provide the following Information on the disclosure to CMS:

  • Name of Entity
  • Federal Tax Identification Number (EIN)
  • Entity geographical information
  • Phone number of entity
  • Type of coverage
  • Creditable coverage status
  • Identify “authorized individual” of the entity

Disclosure must be made online via form CMS-10198. Further guidance and instructions for disclosure is found at CMS Creditable Coverage.

THANK YOU to HORAN for providing the content for this Question of the Week. HORAN serves as a trusted advisor on employee benefits, wealth management and life and disability insurance.  To learn more about HORAN,  please contact your  HORAN for additional information.

 

Employment recordkeeping does not rank high on the list of favorite human resources functions, but it is vitally important. What you keep can be as detrimental as what you don’t keep in some instances. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our Recordkeeping page to learn more about our services.

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Avoid Penalties: Maintain a Legal Hiring Process

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Question:

We are continuously chasing paperwork for employees that a manager may have hired but didn’t include HR in the hiring process.  What problems does this present that we can share with the hiring managers?

Answer:

​It is important to make sure HR is included in the hiring process to assure all items are completed and proper documentation on the process is maintained.  If steps are skipped or documents missed, it can come back to haunt the employer in the future.  Some of the items that are essential for HR review includes the following.

  1. ​I-9 Forms. ​ Legally, the I-9 form must be completed within 3 days of date of hire.  ​Not completing the form timely can result in hefty penalties for employers (https://www.uscis.gov/i-9-central/penalties​)​
  2. ​New Hire Reporting.  ​In Ohio, new hires must be reported to the state within 20 days ​ of hire​.  Each state has a different process or requirements for this. So, if you are in other states, check those requirements.
  3. ​Consistent Hiring Process. ​ Consistency can lead to legal issue​s​ as well.  For example, you run a risk that Manager A is not following the same procedure as Manager B for the similar role, which could be seen as discriminatory even if it isn’t intentional. This could be with regards to the interview process, background checks, drug screens, references, etc.
  4. ​ Timely Benefit Enrollment. ​ If new employee​s​ do not receive ​benefit enrollment paperwork in a timely manner, they may miss the window to enroll.  For example, ​a client company offers Long Term Disability to ​their employees.  If the form is not completed and employee enrolled in 30 days, they have to do a full physical​ and could be turned down for coverage​.  
  5. Consistent compensation allocations. ​ Inconsistent compensation can lead to potential discrimination claims or just create internal equity issues.  If a manager does not check with HR or Finance before an offer is made, it could completely upset the compensation structure within the company and even cause inequity issues.
  6. Communicating employer policies.  If a new hire starts and is not provided the employee handbook and violates a policy, they could claim they never received the handbook​, leading to ​(potentially) ​a wrongful termination. ​ Employees must receive policy information and sign off on that receipt. ​
  7. ​Complete onboarding process. ​ In today’s job market finding candidates and keeping them is a challenge.  If new employees are not properly onboard​ed, ​from legally required paperwork to details about their job and the company, it could create a higher turnover rate.

​As you can see, some of these items are legal and some can result in fines for the employers.  Let HR “in the loop” on all hires before they happen and to make sure these problems don’t come back to haunt.

 

Employment recordkeeping does not rank high on the list of favorite human resources functions, but it is vitally important. Take the I-9 Form for example. Failure to complete this form on a new employee could result in a series of fines. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our Recordkeeping page to learn more about our services.

Image of the Wheel of HR featuring HR Compliance and Recordkeeping Services from Clark Schaefer Strategic HR

When Does An Employee’s I-9 Form Need Updated?

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HR Question:

I have an employee who was recently married and changed her name.  Does she need to complete a new I-9 form with her new name?

HR Answer:

When an employee changes their name (legally) employers are not required to complete a new I-9 form.  The US Citizenship and Immigration Services recommends that employers note the name change in Section 3 of the form.  To make sure your records are in order, here are the points to consider:

  • It is not necessary to document the new forms of identification but most employers, for payroll purposes (not for the I-9 form), will require a copy of the new social security card.
  • It is important for employers to make sure payments are made to the legal name on an individual’s social security card to ensure their W-2 is correct and there are no mismatches.
  • For purposes of the I-9 form, an employer must make a reasonable attempt to ensure the name change is appropriate by requesting a copy of a marriage license or a divorce decree or even a letter from the employee’s religious representative if necessary.

If you have more questions concerning I-9 forms, visit the U.S. Citizenship and Immigration Services (USCIS) Employers Handbook for completing Form I-9.

 

Employment recordkeeping does not rank high on the list of favorite human resources functions, but it is vitally important. Take the I-9 Form for example. Failure to complete this form on a new employee could result in a series of fines. Avoid the fines and minimize your stress level by having Strategic HR assist with your recordkeeping compliance. Visit our Recordkeeping page to learn more about our services.

Image of the Wheel of HR featuring HR Compliance and Recordkeeping Services from Clark Schaefer Strategic HR

Federal Employment Poster Requirements for On-Site and Remote Workers

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Penalty notice warning sign if you don't post federal employment posters.

HR Question:

I keep receiving notices that I need to order new posters to meet federal employment poster requirements. Many of my employees aren’t in the office regularly and those that are don’t look at the posters or any of the compliance documents we are required to distribute. What’s the risk if we don’t post these posters or distribute the annual notifications to employees? Eliminating this task would save me and the company a lot of time and money.

HR Answer:

Even if you feel employees are not reviewing the posters, there’s still a compelling reason to provide them. The Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and the Employee Retirement Income Security Act (ERISA) require these employment postings and notices.  And organizations that don’t comply with the requirements can be fined.

To save time, you can purchase a package of posters from a reputable vendor. This can be an easy, but potentially costly, way to fulfill the necessary poster requirements. However, if you would like a more cost-conscious solution, the DOL has a great option. Their Workplace Posters Overview provides a list of the necessary posters, along with links to downloadable posters in multiple languages.

Did you know that poster requirements can vary by company size and industry? If you’re not sure what federal posters your organization is required to provide, the DOL created the FirstStep Poster Advisor as an interactive, step-by-step guide to help you with poster compliance.

How to Meet Remote Employee Poster Requirements

As many employers have shifted their workforce to a remote or hybrid work model, these employers have to shift their typical in-office practices to meet the Department of Labor’s requirements for their remote employees. To remain in compliance, the DOL requires employers to post labor posters electronically in a file that is accessible by everyone. Also, the file should not be password protected.

Employees must be able to find employment posters for their organization regardless of their work location. So if employers have a hybrid work model, a best practice is to have posters physically posted at the worksite while also including the electronic version of the posters on an accessible intranet.

Penalties For Not Following Federal Employment Poster Requirements

If you are still asking yourself if it’s worth the hassle and expense, consider the potential penalties for non-compliance. In January 2022, the penalties for failure to post and/or provide notifications increased. Although some of the fines may not seem significant, they can add up quickly. According to the Federal Register, here is a sampling of the new maximum penalties for violating the following posting requirements:

  • $189 — Family and Medical Leave Act (FMLA)
  • $14,502 — Job Safety and Health: It’s the Law (OSHA)
  • $23,011 — Employee Polygraph Protection Act (EPPA)

For notifications, the Employee Retirement Income Security Act (ERISA) has significant fines for:

  • Failure to provide the Summary of Benefits and Coverage (SBC) Plan Description ($1,362 per failure)
  • Failure to provide an automatic enrollment notice for your 401(k) plan ($2,046 per day per person)

The Federal Register Poster Fine Reference provides details for all the fines you can incur for failure to comply.

Don’t Forget About State-Mandated Posters

In addition to federal posters, you may also be required to provide state posters. Here are links to posters required by Ohio, Kentucky, Indiana, and all other states. We recommend consulting with your legal counsel to ensure that you provide all of the posters that are appropriate for your organization.

As you can see, there could be several employment posters that your organization is required to post. So, if you think you are going to save time and money by not posting these materials, you may want to reconsider the potential fines and penalties that could result from non-compliance. Is it worth the risk?

Thank you to Patti Dunham, MBA, MA, SPHR, SHRM-SCP, Director of HR Solutions for contributing to this HR Question of the Week.

Recordkeeping is one of the more mundane tasks associated with Human Resources, but it is extremely important and can get you into hot water if not done properly. Learn how Clark Schaefer Strategic HR can help with your HR Compliance and Recordkeeping needs. Feel free to Contact Us with any specific questions you may have.