I-9 Form I-9 Audit Pitfalls Presented by John Collins

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1 I-9 Form I-9 Audit Pitfalls Presented by John Collins

2

3 Before the Pen Hits the Paper After a job offer has been accepted Use current Form current version required as of May 7, 2013 Give the employee the entire Form I-9 packet (all 9 pages) Instructions must be available [to the employee] during the completion of this form. Explain the List of Acceptable Documents Do NOT say Oh, just bring in your SS card and driver s license on the first day. Caveat: E-Verify participants

4 List of Acceptable Documents

5 Before the Pen Hits the Paper An Employer does NOT need a Form I-9 for: Independent contractors (must be truly IC) Volunteers Unpaid summer interns Employees working outside the United States Leased / Temp employees case by case basis

6 The entire first page is now Section 1 the Employee s part

7 Section 1, Part 1: Employee Portion

8 Key Points Section 1 must be completed no later than the FIRST day of employment It can be completed after a job offer is accepted and before the first day of employment Employee must complete section 1 the employer cannot prepopulate Other Names Used formerly Maiden Names New fields Address and Telephone Number both are optional Employer s job to review Section 1 to ensure accurate and complete No P.O. Boxes Social Security Number not required (caveat: E-Verify users)

9 Common Mistakes Not completed on the first day of employment. Names in wrong places Current year instead of DOB year Employer asks to see the social security card to verify the information in Section 1 Failure to instruct employees to put N/A in fields left blank

10 I Spy I-9 Mistakes

11 I Spy I-9 Mistakes

12 Section 1, Part 2: Employee Portion

13 Key Points Attestation is larger and more spread out Intended to make it clearer and easier for the employee The fields for the last option aliens authorized to work are expanded and have new blanks 3-D barcode box leave blank Employee Signature is now in a box (woohoo!) If employee is underage and parent is completing the Form I- 9, then write Individual Under Age 18 in signature block If employee is disabled and a preparer is completing the Form, then write Special Placement in signature block

14 Common Mistakes No attestation Multiple boxes checked Employee fails to complete the blanks, when required Employer asks to see document Employee signs in the wrong spot Employee fails to sign Employee signature date is wrong or missing Employee signature date is backdated

15 I Spy I-9 Mistakes

16 I Spy I-9 Mistakes

17 Section 1, Part 3: Employee Portion

18 Key Points To be used if employee needs the form interpreted or prepared by another person U.S. employers cannot use spanish version of Form (but can have it available for translation purposes only) Unless underage or disabled, the employee must still sign Section 1 By signing, the preparer is attesting that Section 1 is true and correct to the best of his/her knowledge

19 Common Mistakes Failure to complete all blanks Failure to sign and date it Employee fails to sign Section 1

20 The entire second page is now Section 2 the Employer s part

21 Section 2, Part 1: Employer Portion

22 Key Points Section 2 must be completed within 3 business days of the first date of employment: Day 1 Day 2 Day 3 Day 4 Day 5 Employee s first day of employment; Section 1 must be completed Section 2 must be completed (if employee works more than 3 days) Caveat: if employee is hired for less than 3 days, then section 2 must be completed on Day 1.

23 Key Points Employee must present original, unexpired documents Both employee and employer rep must be physically present Cannot do this over webcam, etc. Reasonably appears genuine and relates to person Cannot tell employee what documents to present Caveat: E-Verify users if employee presents a List B document, it must have a photograph Can accept receipts in limited circumstances

24 List A Documents

25 List A Documents

26 List A Documents

27 List B Documents

28 List C Documents

29 List C Documents

30 Common Mistakes Not completed at all Information missing Using uncommon abbreviations ICE says you can use common abbreviations I recommend no abbreviations Accepting expired documents Accepting too many documents Accepting wrong combination of documents White out!

31 I Spy I-9 Mistakes

32 I Spy I-9 Mistakes

33 Section 2, Part 2: Employer Portion

34 Key Points Remember: you are attesting under penalty of perjury (like testifying in court) Must put employee s first date of employment Should match your payroll records (in most cases) Temporary staffing agencies can use the first day the employee enters the job pool. Can prepopulate the business name and address The employer rep who signs the form must be the person who examined the documents

35 Common Mistakes Failure to include the first date of employment First date of employment does not match payroll system Employer pre-signs Form (big no no) Employer signature date missing Not completed and signed within 3 business days Backdating

36 I Spy I-9 Mistakes

37 I Spy I-9 Mistakes

38 Section 2, Part 3: Employer Portion

39 Key Points If the employee s temporary employment authorization has expired, then must reverify. Examples: Foreign nationals with Employment Authorization Document that has an expiration date (ex. F-I students, refugees) Foreign Nationals with Temporary Work Authorization (ex. H-1B, H-3, TN) Have to reverify on most recent version of Form You MAY also complete section 3 if you: Rehire the employee within 3 years of the original date of hire I recommend completing a new I-9, instead, for rehires. Update the biographic information of an employee

40 Common Mistakes Reverifying documents that are not required to be reverified (ex. permanent resident cards, passports, List B documents)

41 Form I-9 Best Practices Study the new I-9 and its instructions Read the M-274 Handbook Create a culture of compliance: Draft I-9 policies and procedures Annual internal audits Designate an I-9 compliance officer (should be someone different than who completes the I-9s) Work with a local, experienced attorney during sticky situations, internal audits, and ICE/DOJ audits Now is a good time to clean house and do an internal audit of your I-9s

42 I-9 Compliance Resources I-9 Central: Form I-9: Form M-274 Handbook for Employers: Guide to Select U.S. Travel and Identity documents

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