By Nelsy C. Gómez, Esq.

…

6. DO include the employee’s employment start date in Section 2. This is a very common omission. Within Section 2, you will find a Certification which includes your attestation that you have examined the documents presented by the employee and you are confirming, to the best of your knowledge, that the employee is eligible to work in the United States. Lost among the four-line Certification is an extremely small space for entry of the employee’s start date. Failure to include this date can potentially be a fineable offense. Remember, Section 2 is to be completed by the third business day after the date the employee starts working. Therefore, inclusion of this date is very important and indicates when the form and verification were completed in relation to the employee’s start date.

7. DON’T neglect the purpose of Section 3. It serves many purposes! Section 3 enables you to reverify those employees whose eligibility for employment may expire, or has been affected by some life event. For example, employees who present an Employment Authorization Document (Form I-766) will have to be reverified since these documents are typically valid for only two years. Also, employees who have a legal name change will need to have Form I-9 updated to reflect the new name through the completion of Section 3. Therefore, it is important to be mindful of when certain documents may expire or need to be updated. The best way to ensure that you do not miss these expiration dates is by creating a tickler system. A tickler system providing a 90-day reminder of the expiration of a particular document will help you maintain the validity of your I-9 files and will remind your employees of the imminent need to have a document updated or renewed.

8. DO store your I-9 files separate from the rest of your personnel documents. Normally, upon receipt of a Notice of Inspection, you will be asked to provide your I-9 files in the manner they are generally kept in your workplace. If they are kept amongst your other personnel documents, guess what? Not only will you to have sift through those files to find the forms during that short 72-hour window, but you may very well have to produce the entire personnel file. Therefore, keep your I-9 files separate. This will make them easily accessible if you ever have to undergo an agency inspection and will help to avoid any of the headaches that may arise by having to produce entire personnel files.

9. DO perform periodic internal audits of your I-9 files. This is especially important if multiple individuals are responsible for completing the forms with your employees. An inspection of your I-9 files by an ICE agent should never be the first audit conducted. An internal audit will demonstrate whether additional training is needed or if consistent errors are being made that need to be addressed. First, form a small team comprised of members of your management to conduct the audit. This team should have at least one member of your human resources department, or similar department. Additionally, you may want to have an immigration attorney assist with the audit or be available to answer questions as you perform the audit. Once the team is created, perform an overview of the Form I-9. Point out common errors and mistakes team members should look for as they review the forms. Also, ensure every team member understands the proper way of completing a correction on the Form I-9.

10. DON’T ever whiteout or back-date anything on the Form I-9 during your internal audit. Any corrections or changes made to the Form I-9 during your audit, whether the audit is internal or pursuant to a Notice of Inspection, should be visible and clear to the person viewing the Form I-9. In order to make a correction or change, it is best to draw a clear straight line through the incorrect information, enter the correct information, and then initial and date the correction. You should also consider making the correction with a different color pen so that the correction is apparent. If an error cannot be corrected, you should attach a memorandum to the I-9 indicating the discovery of the error and the reason(s) the error cannot be fixed. It is important to note that the employer can only make corrections or changes to Sections 2 and 3 of the form. If a correction is needed in Section 1 and the employee is still a member of your workforce, you can ask the employee to make the correction. Additionally, there will be instances where the errors on the form are substantial. If this is the case, you can have a new Form I-9 completed or use a new Form I-9 to complete just the section where the substantial errors were found. In either situation, you will want to attach the newly completed Form I-9 to the previous one containing the errors. Do not destroy the older Form I-9.

The Form I-9 does not have to be the bain of your workplace’s existence. With proper training and periodic audits, your I-9 files will be in shape and ready for any agency inspection. By implementing these proactive steps into your internal I-9 compliance efforts, you can stop the panic and breathe a little easier when ICE appears at your door.”