The I-9 and E-Verify are used to help employers in determining an employee’s eligibility to work in the U.S. A number of errors and mistakes can occur with E-Verify and the I-9 form that employers should avoid in order to stay compliant. Here is a summary of some common mistakes employers make with the I-9 form and E-Verify.
Using an outdated I-9 form.
Be sure that your organization isn’t using the old version of the I-9 form. After May 7, 2013, all employers were required to use the most current version of the I-9 with new hires.
Improperly retaining the I-9 form.
The I-9 form needs to be stored separately from personnel files to ensure that employees’ privacy won’t be disclosed. The forms may be retained electronically or on paper. However, it’s important to note that there are several specific requirements for retaining the I-9 form electronically.
I-9 forms must be retained for as long as the employee works for the company. After an employee has been terminated, the employer must retain the form for at least three years after the date of hire or for one year following the employee’s separation from the company, whichever is later.
Not completing the I-9 form by required deadlines.
Not completing the I-9 form by required deadlines is a common mistake. Section 1 must be completed and signed by employees on the new hire’s first start date. Also, Section 2 must be completed by employers with acceptable documents titled and presented within 3 business days following the start day.
Failing to completely fill out sections.
Before the I-9 form is accepted, employers should make sure each section is filled in properly without any fields missing.
Submitting a late re-verification.
Section 3 of the I-9 form is used for the work authorization re-verification and is required to be completed prior to the actual expiration date of employees’ work authorization with the acceptable documents titled and presented. Any late re-verification results could result in a denial of the employees’ work authorization.
The I-9 form lists acceptable documents under List A, or List B and List C which prove work eligibility, not all three. Accepting a document from all three lists is considered over-documentation and can potentially result in a fineable offense.
Improperly handling corrections.
Any corrections made on the I-9 form must be visible and clear to the person viewing it. The suggested way to make corrections on the I-9 form is to draw a clear straight line through the incorrect information, and initial and date the correction with different color of ink once any changes are made.
Using the system selectively.
E-Verify applies to all new-hires, even if they are seasonal, temporary, or a re-hire, after the company signs the E-Verify Memorandum of Understanding (MOU). Selectively seeking verification based on “suspicion” that a person may not be authorized to work in the U.S., and not using the system for all new-hires, may result in a bias claim.
Using the system to check on current employees.
E-Verify must only be used for new-hires and it can only be started anytime after the I-9 form is completed, but in no later than three (3) business days after the new hire’s actual start date. Employers may not check current employees using the system.
Using the system to pre-screen.
E-Verify cannot be used for pre-employment screening of job applicants in cases of potential discrimination based on Immigration and Nationality Act.
When a mismatch happens, E-verify will return a “Tentative Non-confirmation (TNC)” result and employees must be notified as soon as possible. A “Tentative Non-confirmation” is not immediate grounds for termination and the following must be applied:
- For the employees who decide not to contest, employers can terminate them on grounds of E-Verify at this point.
- For employees who decide to contest the mismatch, he/she must contact the appropriate agency to resolve the mismatch within eight (8) federal government work days from the referral date. If the mismatch is resolved, an “Employment Authorized” result will be returned. Otherwise, a final non-confirmation will be sent and the employees can only be terminated based on E-Verify at this moment.
Preventing an employee from working while contesting a TNC.
Employees should by no means be discouraged from contesting a TNC and prevented from working while it is being resolved. Employees may continue their work during this period.
Requesting status updates from the employee.
Employers are responsible for checking status updates of the TNC case daily, which could include: “Employment Authorized,” “No Show,” “Final Non-confirmation,” or “Review and Update data/resubmit.”
Although those errors are negligible, not making them is vital to I-9 and E-verify compliance. To both protect the employees’ rights and avoid unnecessary fines and lawsuits, HR professionals need to pay special attention to those common mistakes.
Does your organization need help conducting a Form I-9 Audit?
ERC has consultants to help your organization conduct a complete I-9 Audit.