Updated February 10, 2022
My company recently began to review our I-9s and found that we are missing some I-9 forms, and some are incomplete. 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!
First, 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 to do if you 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 should also be included with the I-9 regarding the reason you had to complete a new I-9.
To 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 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. 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.
Never Backdate an I-9 Form
Employers that make false statements or attestations to satisfy the employment eligibility verification requirements may be fined, imprisoned for up to five years, or both (and this could be higher in certain fraud cases). If an investigation reveals that an individual knowingly committed or participated in acts relating to document fraud, additional (and substantial) fines may be imposed.
Penalties for I-9 Violations
Failure to comply with I-9 verification and document retention requirements could result in a penalty. Most recently, the minimum penalty for a first offense is $252 per I-9; the maximum penalty is $2,507 per I-9 for a first offense. These penalties are adjusted for inflation each year, so you should review the Federal Register’s Civil Monetary Penalty Adjustments for future updates. It’s also important to note that fines can increase significantly for second or subsequent violations.
Penalties are assessed based on several factors, including:
- The size of the employer
- Any good-faith efforts that were undertaken by the employer
- The seriousness of the violation
- Whether the individual involved is an unauthorized alien
- Any history of previous violations by the employer
The statute doesn’t require that equal weight be given to each factor, nor does it rule out consideration of additional factors.
Maintaining Compliance – How to Conduct an I-9 Audit
To reduce your risk, it is recommended to conduct regular internal I-9 audits and correct any mistakes appropriately. If you are unfamiliar with the process, see our article on how to conduct an I-9 audit. Also, 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. It can be found in this handy downloadable guide.
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 are 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. We also recommend correcting any internal practices that led to the discrepancies so they are not repeated.
Thank you to Cassie Whitehouse, M.Ed., Senior HR Business Advisor, for updating this HR Question of the Week.
Recordkeeping is one of the more mundane tasks associated with Human Resources, but is extremely important and can get you into hot water if not done properly. If you’re concerned about your I-9 compliance, 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 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 Legal Compliance and Recordkeeping Services.