How Do I Handle Missing or Incorrect I-9 Forms?
Last Updated on October 3, 2024 / HR Compliance, Recordkeeping
HR Question:
My company recently began reviewing our I-9s and found that we have some missing or incomplete I-9 Forms. Can we ask the affected employees to fill out another I-9 if it is missing? If so, how do we do it correctly? And if it was incomplete, can we update it on the old form? Please help!
HR Answer:
It can be concerning to realize you have missing or incomplete I-9 Forms, and it’s critical to take appropriate action. To begin, it’s important to understand that there are two types of I-9 errors: (1) technical and procedural errors and (2) substantive errors.
Technical and procedural errors can be corrected. An example is forgetting to record a document title, which can easily be fixed, and fines are discretionary.
A substantive error cannot be corrected. If audited, your company will likely face a fine if the statute of limitations has not been met. Examples of substantive errors include failing to complete I-9 paperwork or not signing or dating Section 2 of the form.
What should I do if I have Substantive I-9 Errors? (i.e., missing I-9s or incomplete I-9s)
The Immigration and Nationality Act (INA) was intended to relieve employers of liability for certain minor and unintentional violations but wouldn’t act as a shield to avoid its basic requirements. When an I-9 form isn’t properly kept or completed, the violation is considered substantive and therefore uncorrectable.
If an I-9 form is lost, destroyed, or not maintained as required by the INA’s retention requirements, the appropriate action is to come into compliance with the law as quickly as possible. Once identified, a missing I-9 form should be completed by the employer and the affected employee immediately along with the current date.
This won’t correct the error, but it does demonstrate a good-faith effort to comply with the law, which may be considered if penalties are assessed. A note, attached to the document, should also be included with the I-9 regarding the reason you had to complete a new I-9.
How do I correct an existing I-9 Form error?
- Draw a line through the incorrect information
- Enter the correct information
- Initial and date the correction
To correct multiple errors on the form, you may redo the section on a new I-9 form and attach it to the old form. A new 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, including a signature and date, should be included in the file regarding the reason you made changes to an existing I-9 or completed a new I-9.
Be sure not to conceal any changes made on the form. Do not erase information on a form or use correction fluid; doing so may lead to increased liability under federal immigration law. If you have made changes on an I-9 using correction fluid, it is recommended that you attach a signed and dated note to the corrected I-9 explaining why.
How should I handle unclear I-9 documents?
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.”
Can I backdate an I-9 Form?
What are the penalties for I-9 violations?
Failure to comply with I-9 verification and document retention requirements could result in a penalty. On June 28, 2024, the Department of Homeland Security (DHS) announced an updated fine schedule that includes:
- I-9 Paperwork Violations range from $281 to $2,789 per form.
- Knowingly employing unauthorized aliens ranges from $698 (first offense) to $27,894 (third or more offense).
- E-Verify Employers can incur additional fines of $973 to $1,942 per individual due to non-confirmation notices.
Fines vary and can increase significantly based on the number of violations, especially when a large number of late I-9s or incomplete I-9s are discovered. To review the complete list of penalty adjustments, visit the Federal Register.
How do I conduct an I-9 audit to maintain compliance?
To reduce your risk, it is recommended to conduct regular internal I-9 audits and correct any mistakes appropriately.
Are you new to your organization and responsible for this task? An I-9 audit can be an important first step to ensure your organization’s documentation is in order. If you are unfamiliar with the process, see our article on how to conduct an I-9 audit.
Additionally, the U.S. Immigration Customs and Enforcement (ICE) and the Immigrant and Employee Rights Section (IER) have provided joint guidance to help employers perform internal audits which can be found in this handy downloadable guide.
It is also important that you continue to be aware of any reporting or process changes, such as the ending of the I-9 verification flexibilities, to ensure that you are maintaining your records properly.
Bottom Line…
It’s best to always ensure compliance within the appropriate three-day verification period from the employee’s date of hire to when the I-9 form is completed and signed by both parties.
If you discover an error, you should take corrective action immediately. While substantive violations are not correctable, every effort should be made to ensure good-faith compliance when a discrepancy is uncovered.
If a discrepancy is discovered, you could be at risk of incurring substantial fines in the event of an audit. For additional support, you may want to contact an I-9 expert or legal counsel for guidance.
For additional support, the USCIS provides “I-9 Central” where you can find in-depth information on how to complete the form, make corrections, review descriptions of acceptable documents, and much more.
Thank you to Paula Alexander, MA, PHR, SHRM-CP, and Cassie Whitehouse, M.Ed. for updating this HR Question of the Week.
Recordkeeping is one of the more mundane HR tasks, but you can get into hot water if it’s not done properly. If you’re concerned you may have missing or incomplete I-9 Forms, you should conduct an internal I-9 audit. If you don’t have the time or the expertise to do this properly, one of our expert HR Advisors at Clark Schaefer Strategic HR would be glad to help. Contact us for assistance with your I-9 audit or other recordkeeping needs. You may also be interested in learning more about our HR Compliance and Recordkeeping Services.
