The Trump administration promises a rigorous approach to immigration control, employers are urged to review and ensure their Form I-9 practices comply with the law. There could be an increase in worksite enforcement activities, underlining the importance of preparing in advance and ensuring that USCIS Form I-9s are accurate and complete.
The administration’s focus also prompts special attention to remote hires, wherein employers need to follow DHS-authorized procedures for document examination. Updated forms need to be used as USCIS periodically updates their forms. Employers also need to ensure diligence during corporate transactions, responsibility for inherited forms, and compliance with electronic Form I-9 systems.
With potential enforcement actions under the new administration, it is more crucial than ever for employers to audit their Form I-9s and make necessary corrections and policy changes to be fully prepared. This includes ensuring all employees have properly completed and signed their forms, verifying identity and employment authorization documents in a timely manner, and maintaining accurate records of re-verification.
Employers should also consider providing comprehensive training for staff responsible for managing Form I-9 processes. Proper training ensures that employees are aware of their obligations and minimizes the risk of errors or noncompliance. Designating a compliance officer or team specifically to monitor and manage Form I-9 procedures can be an effective strategy, particularly for organizations with a high volume of hires.
Additionally, employers must stay informed about ongoing regulatory changes and updates to immigration policies under the current administration. Subscribing to alerts from USCIS and consulting with legal experts specializing in employment law can help ensure compliance. By taking a proactive approach to Form I-9 management and fostering a culture of compliance, employers can mitigate risks, avoid penalties, and demonstrate their commitment to adhering to federal requirements.
Another critical aspect of Form I-9 compliance is the importance of safeguarding employee data. With the rise of cybersecurity threats, employers must ensure that sensitive information collected during the Form I-9 process is securely stored and protected from unauthorized access. This includes implementing robust data protection policies, encrypting electronic Form I-9 records, and restricting access to authorized personnel only. Employers should also regularly review and update their data security measures to align with current best practices and regulatory requirements.
Furthermore, organizations should be prepared to respond promptly to government inspections or audits. This includes maintaining well-organized Form I-9 records, responding to Notices of Inspection (NOIs) within the required timeframe, and cooperating fully with enforcement officers. Employers should also be aware of their rights during inspections and consider seeking legal counsel to ensure they handle the process appropriately. Being prepared for these scenarios not only demonstrates a commitment to compliance but also helps minimize potential disruptions to business operations.
The following is a list of the most common Form I-9 errors made by employers and which might raise issues during an audit, as well as recommendations for how to avoid those mistakes.
Failure to Complete Form I-9 on Time
- Employees must fill out Section 1 by or before their first workday.
- Employers must finish Section 2 within three business days of the employee’s start date.
Prohibited Use of Form I-9 as a Screening Tool
- Employees may complete Section 1 on or before their start date but only after a job offer has been accepted.
Errors in Data Fields
- Missing signatures, incomplete fields, or incorrect dates may result in fines.
- Employers (usually HR representatives) should carefully review Section 1 to ensure all fields are completed.
- Employees must attest to their citizenship or immigration status by checking the appropriate box and providing relevant documentation, such as a USCIS number, I-94 number, or passport details.
- Errors such as failing to sign or date the form or selecting the wrong status box can lead to penalties.
- Employers must accurately complete all mandatory fields in Section 2, including the hire date, representative details, and company information.
Improper Document Verification
- Only accept documents listed on the Form I-9’s List of Acceptable Documents.
- Employees must present either one document from List A or a combination of one from List B (identity) and one from List C (work authorization).
- Employers cannot accept expired documents and must allow employees to choose which valid documents to present.
- E-Verify employers should retain copies of presented documents, especially for audits.
Failure to Reverify Employment Authorization
- Employment authorization must be reverified before its expiration using Supplement B.
- Expired List B documents (e.g., driver’s licenses) should not be reverified.
- Permanent residents and U.S. citizens do not require reverification even if their documents expire.
- Temporary work permits require reverification, but some work authorizations may automatically extend under specific conditions.
Poor Retention Practices
- Maintain Form I-9s for active employees and retain them for the longer of three years after hire or one year after termination.
Internal Audits
- Regular audits help identify and fix compliance gaps.
- Only employers can correct errors in Section 2 or Supplement B, while employees must revise Section 1 errors themselves.
- Errors should not be backdated, and legal counsel can assist during audits or ICE inspections.
Handling Remote Hires
- E-Verify employers in good standing may use DHS-approved remote document review procedures, such as live video interaction.
- Employers must apply these procedures consistently and adhere to USCIS guidelines.
Using the Correct Form I-9 Version
- Always use the latest Form I-9 version available on the USCIS website.
Errors in Corporate Transactions
- During mergers or acquisitions, employers may choose to treat retained employees as new hires or keep the predecessor’s Form I-9.
- If completing new forms, Section 1 must be completed by the first day of employment, and Section 2 within three business days.
- Employers accepting inherited Form I-9s assume responsibility for any errors.
Mistakes in Electronic I-9 Systems
- Electronic I-9 systems must comply with regulations for legibility, audit trails, and security.
- Proper electronic signatures and restricted access are mandatory to prevent violations.
- Systems must allow on-demand production of I-9 forms for ICE inspections.
Preparing for Enhanced Enforcement
- Employers should audit and correct their Form I-9 practices to avoid penalties, especially given the anticipated increase in enforcement under the incoming administration.
Ultimately, a proactive and diligent approach to Form I-9 compliance is essential in the current regulatory landscape. By addressing vulnerabilities, adopting best practices, and remaining vigilant about policy updates, employers can foster a compliant and responsible workplace while reducing the likelihood of costly penalties or legal challenges.
Employers should also be aware of state-specific laws that may affect Form I-9 compliance. Some states have their own versions of the form or require additional information to be collected from employees. It is important for employers to stay up-to-date on these laws to avoid any potential violations.
In addition to proper completion and record-keeping practices, employers should also train human resources staff responsible for completing Form I-9s to ensure they are following all guidelines and regulations. Ongoing training can help prevent common errors and keep the company in compliance with federal immigration laws.
In conclusion, employers should make it a priority to regularly review and update their Form I-9 practices in order to comply with changing regulations and minimize potential risks. By staying informed and proactive, employers can ensure they are following the law and avoiding any negative consequences that may arise from noncompliance. Hence, it is crucial for organizations to prioritize proper Form I-9 management as part of their overall compliance strategy.
