An employer should periodically review, or “audit,” its I-9 forms to insure compliance with the law. In doing so, an employer may avoid future potential liability if it is ever audited by the DHS or DOL. The following are suggestions for auditing and correcting I-9 forms.
Any procedure used should require that each I-9 is individually reviewed, checking for errors and incomplete forms, checking the completion date against the hire date, and looking for expired or temporary work authorization expiration dates. When reviewing the I-9s there is no prohibition against highlighting missing or incorrect information that requires further attention. A list should be made to account for missing I-9s, re-verification (where an expired or temporary work authorization was utilized as part of the process), as well as those requiring correction (and identifying the correction necessary). At this point of review, all I-9s of terminated employees should be moved to a termination file. The termination file should also be reviewed so that I-9s of employees terminated more than three years prior to the audit may be discarded and destroyed. (Remember that I-9s contain privacy related information and should be destroyed in a manner that will not allow an unauthorized person to recover the data.)
The record of audit results will assist in identifying specific problems in the creation and retention of I-9s. Such results should be used in revising procedures to ensure accuracy and compliance with the law. A good practice would also be to create a list of work authorization expiration dates so that these may be calendared in a company’s docketing or tickler system.
The steps taken to correct I-9 records will depend upon the type of error or missing information to be corrected as explained below.
When correcting I-9s it is important that the document reflect that it has been audited. An employer should note “audit” on the form, preferably on the top of the form, and attach an audit form, if necessary, explaining the circumstances of the audit. For example, a simple audit memo might state that on the annual audit of I-9s conducted on such and such a date, the following error(s) was discovered and corrected. All corrections may be made in different colored ink, dated and initialed, regardless if the correction is made by the employee, the employer or both.
Section 1 Corrections: Since the employee is required to complete this section of the I-9, only the employee may correct errors or omissions to the signature and status box. However, if the employer has copies of the documents containing the information the employer may insert a missing Social Security Number (SSN) or the nine-digit alien registration (“A” number). The employee must complete the missing information if the documents containing the SSN or A number are not available to the employer.
Section 2 Corrections: The employer has flexibility here in correcting the I-9 since it is the employer’s responsibility to complete this section of the form. However, the employer cannot insert a missing date of completion. An employer can fill in missing information such as a driver’s license state or number, if a copy of the document is available. Or the employer may insert the term “Social Security Administration” if a social security card was presented as a list C document. A missing date of hire can be inserted, a missing signature can be inserted and other information required in the employer certification can be inserted, but again the date of completion cannot be inserted.
Section 3 Corrections: The employer has flexibility here also. A late re-verification can be prepared if the work authorization has expired. Missing employee information can be filled in if copies of the document are available, otherwise you must contact the employee to obtain the necessary information to complete the re-verification.
Where I-9s are lost or missing it is necessary to complete a new I-9. The employer should meet with the employee at its earliest opportunity to complete the I-9. The same procedure should be followed in completing the I-9 here as for any new hire. However, the section 2 date of preparation should be the actual date of the preparation, with the term “audit” placed on the document.
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