July 13th, 2015 | Sterling
SterlingBackcheck Answers Your Top 10 Questions About Form I-9
If you find the Form I-9 process and regulations around it a little hazy, rest assured that you’re not alone. It’s one of the areas that employers find the most difficult to grasp and we’re often asked how to make the process more consistent, convenient and compliant.
We recently held a webinar on I-9 Audits, which focused on current case studies, what employers can learn from them, guidelines for self-auditing and how to reduce the risk of violating Form I-9 regulations. The webinar offered participants an opportunity to ask questions and one thing was very clear – many employers had valid questions about the I-9 process and how to prevent penalties in the event that they’re audited.
Here is a recap of some of the 10 most common questions about Form I-9 from employers like you:
FORM I-9 PROCESS & DOCUMENTS
If an employee completes Form I-9 today and presents documents today, but doesn’t start for several months, and the driver’s license expires sometime between now and then, is it still considered a valid form of documentation?
Answer: The short answer is yes. Form I-9 may be completed once the offer of employment has been accepted. This holds true even if it occurs months in advance of the official paid start date. When completing Form I-9, the employee is required to present valid original documentation, specifically identification and employment authorization. The driver’s license must be valid at the time of completion of Form I-9, and as a List B document, never needs to be re-verified.
Am I responsible for re-verifying non-expired, acceptable documents (example: driver’s license)?
Answer: Non-expiring documents and List B documents never require re-verification. Form I-9s should only be re-verified if the employee’s work authorization has expired, if the employee changes his or her name, or if the employee is rehired within three years of the date that the Form I-9 was originally completed. Re-verifications may be completed in Section 3 of Form I-9. If Section 3 was previously completed or if the version of the form that was originally used is no longer valid, the employer must complete Section 3 on a new Form I-9 and attach it to the previously completed version.
Why are notaries mentioned when discussing remote hires if they do not act as a notary and the Notary Manual suggests that they do not complete Section 2?
Answer: In general, notaries are referred to in remote hiring scenarios because of their widespread presence throughout the US, their credibility and expertise in witnessing and authenticating the execution of certain documents, their frequent acceptance of affidavits and statutory declarations and their unbiased and impartial role. There is a perceived credibility and general trust associated with these sworn public officials.
USCIS has stated that the Notary does not act in the capacity of a Notary when completing Section 2. In other words, s/he is not using Notary credentials to complete the form and is not stamping or sealing the Form I-9. All individuals acting on behalf of the employer are authorized representatives. Ultimately, the employer is still liable for any violations or omissions associated with the completion of the Form I-9. Learn more about Form I-9 and remote hires in our webinar: Remote Hires and the I-9 Process: Are You Sure You’re Compliant?
FORM I-9 STORAGE & RETENTION
Does the 3 year rule mean that Forms I-9 for current employees must be on file? Or can they be purged after 3 years?
Answer: Yes, there must be a Form I-9 on file and stored for every person on your payroll. Furthermore, Form I-9 must be retained for a specific period of time after the employee leaves the company. After an employee has left the company, the employer must use the 3/1 year rule to determine how much longer Form I-9 must be retained. U.S. Citizenship and Immigration Services (USCIS) has provided employers with a helpful Form I-9 retention calculator to assist in identifying the correct date.
Can Forms I-9 be stored electronically?
Answer: Yes, employers are permitted to store Forms I-9 electronically. According to our recent survey, 34% of employers use a fully electronic Form I-9 process and another 32% use a combination of paper and electronic processes. Employers are not required to retain the original signed paper copies if the forms are scanned and stored in PDF format. This highlights the importance that the original hardcopy forms are complete and legible. In addition, an electronic storage system must meet specific criteria:
- Include controls to ensure the integrity, accuracy and reliability of the electronic storage system.
- Include controls to detect and prevent the unauthorized or accidental creation of, addition to, alteration of, deletion of or deterioration of an electronically stored Form I-9, including the electronic signature, if used.
- Include controls to ensure an audit trail so that any alteration or change to the form since its creation is electronically stored and can be accessed by an appropriate government agency inspecting the forms.
- Include an inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Forms I-9, including the electronic signature, if used.
- Include a detailed index of all data so that any particular record can be accessed immediately.
- Produce a high degree of legibility and readability when displayed on a video display terminal or reproduced on paper.
Assuming that the electronic system meets these requirements, employers can benefit from a compliant, convenient, and consistent Form I-9 process.
FORM I-9 AUDITS
How far back can ICE do an audit?
Answer: ICE can perform an audit and request to see all Form I-9s dating back to November 6, 1986 when the form went into effect, pursuant to 274A of the Immigration and Nationality Act (INA), as added by the Immigration Reform and Control Act of 1986 (IRCA).
Does enrollment in E-Verify reduce the risk of being audited?
Answer: While E-Verify uses information taken from the Form I-9, it does not absolve an employer from risks associated with Form I-9 non-compliance. Employers may still be audited if they are enrolled and using the E-Verify program. Presently, two thirds of employers use E-Verify and another 10% plan to adopt it in 2015. Additional information can be found in our previous blog post E-Verify is Not Enough: Complying with Form I-9.
How should forms be corrected if an issue is uncovered during an audit?
Answer: If a Form I-9 was completed incorrectly, the employer can make corrections to the original form or create a new one. When making corrections to the original form, employers should draw a line through the incorrect information and enter in the correct information. Each correction must also be initialed and dated. Only the employee is permitted to make corrections to Section 1. Similarly, only the employer may make corrections to Section 2. If an employer discovered a missing Form I-9 or decides to create a new Form I-9, the employer must complete a new Form I-9 with the original start date. The newly complete form should not be back-dated. Both forms should be retained together and a note should be included in the file to explain the reason for completing a new Form I-9.
What consequences will an employer face if Form I-9 isn’t completed and processed by the third day?
Answer: The penalties for failing to comply with Form I-9 requirements range from $110 to $1,100 per violation. Additionally, if U.S. Immigration and Customs Enforcement (ICE) notices a pattern of knowingly hiring, recruiting, or referring unauthorized workers, it can levy both heavy fines and prison times for the responsible individual.
What are some examples of common Form I-9 errors?
Answer: Common errors include:
- Incorrect employee information and attestation in Section 1
- Incorrect start date in Section 2
- Missing signature, dates or checkboxes
- Missing Form I-9 (altogether)
- Failure to re-verify Form I-9
- Failure to review valid, unexpired IDs based on the employee’s attestation
- Failure to retain Forms I-9 according to documentation retention guidelines
- Failure to keep copies of Photo IDs for E-Verify
USCIS provides additional information regarding common Form I-9 errors and how to avoid them.
There you have it – SterlingBackcheck’s Top 10 Form I-9 Questions & Answers. If you missed SterlingBackcheck’s webinar on I-9 Audits: Why You Should Be Worried Now, you can watch it anytime on-demand.
Disclaimer: The information contained in this blog post is not intended to be construed as legal advice. Employers should consult with their legal counsel regarding detailed compliance requirements with Form I-9 regulations.
This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.