I-9 Land Mines: What to Do When Documentation Problems Arise

Form I-9 completion is a standard — and critical — part of the onboarding process in the U.S., but HR professionals may encounter administrative problems that threaten legal compliance. In a recent SHRM webinar titled “I-9 Land Mines: What You Don’t Know Will Cost You,” SHRM CHRO Jim Link, SHRM-SCP, and Daniel Brown, an attorney at Fragomen’s Washington, D.C., office, discussed common issues surrounding Form I-9 and what HR professionals can do to stay compliant.  

What Is Form I-9?

Under the Immigration Reform and Control Act of 1986, all U.S. employers, no matter their size, must complete a Form I-9 for every worker hired after Nov. 6, 1986. This form, and the accompanying examination of identity and work authorization documents, must be completed within three days of  the employee’s first day of employment to confirm their eligibility to work in the U.S. Notably, Form I-9 violations have a five-year statute of limitations, so it is in an employer’s best interest to avoid errors.  

A Missing or Incomplete Form I-9

But mistakes do happen. What if an HR professional discovers that a current employee is missing a Form I-9? They “need to complete one as soon as possible,” Brown said. In this situation, it is acceptable to give the employee a few days to gather the required documents.  

HR could also discover an incomplete Form I-9. If the missing information is related to the employer, they may go ahead and fill it in, Brown said. If the information is related to the employee, the employer will need to request that information from the worker. Should the employer make a correction to a Form I-9, they will “want to date and initial that correction with today’s date,” Brown said.  

Storing a Form I-9

In an audit, an employer needs to be able to produce Form I-9s within three business days. It is therefore essential that employers store them in a central, trackable location. It is acceptable to have Form I-9s retained as the original paper copy or scanned and stored as PDFs. In general, it is considered best practice to have a good digital system, especially for large companies with locations in different states, Brown said. If an employer switches to an electronic system, they do not necessarily have to recomplete all Form I-9s because many systems allow users to digitize paper copies.  

However, if a company uses an electronic system to complete and store Form I-9s, it needs to be sure the software complies with U.S. Immigration and Customs Enforcement (ICE) regulations. It is wise to ask potential third-party vendors whether their system is compliant.  

ICE Audits

Employers should always be prepared for a Form I-9 audit conducted by ICE. Such an inspection involves an ICE officer physically showing up and delivering a Notice of Inspection. They will request employees’ Form I-9s and may have a subpoena for other corporate documents. During the audit, ICE will check the authenticity of employee documents. If the agency discovers fake documents, the employer will have to terminate the flagged employees. “We’re expecting a big increase in I-9 audits under the Trump administration,” Brown said. “That process has started.”

Employers should note that if they retain their Form I-9s as paper copies, ICE will take the originals. It is therefore recommended that employers make duplicates in the event of an audit. 

“A lot of employers may receive visits from an ICE agent, and they may have a warrant in hand,” Brown said. This is likely an administrative warrant for an individual’s arrest and deportation. In this case, the agent is allowed to enter only public areas of the business and nowhere else without the employer’s permission. It is important for employers to talk to counsel and have a protocol in place for handling this scenario.  

But if ICE officers arrive with a search warrant from a judge, they have the right to enter private areas, and there is nothing an employer can do. “You want to make sure you’re not impeding law enforcement,” Brown cautioned, “but you don’t want to give up the company’s rights.”

Fake Identification Documents  

An employee may approach their employer, acknowledge providing false ID documents, and say they can provide legitimate ones now. In this situation, an employer has the option to create a new Form I-9. However, they should review the company’s policy about honesty and ensure they are following it consistently to avoid a claim of discrimination from other employees. In this sense, there are ethical and legal angles to the issue.  

When an employer’s representative reviews Form I-9 documents, it is crucial that the representative is physically present with the employee. Nowadays, it is OK to do the verification over a video call. If a document appears legitimate and E-Verify does not raise any flags, then the employer is protected from liability should the document prove false.  

Form I-9 Reverification 

Some employees may have temporary work authorization. In this case, employers need to reverify a worker’s authorization before it expires. The individual has already verified their identity, so reverification is really meant to confirm their work eligibility. Because this process is only supposed to verify status, it is not always necessary to produce a new Form I-9. 

Retaining a Form I-9 and Documents 

Employers need to have a Form I-9 for every active employee. After someone is terminated, the employer can calculate how long they need to retain the form. It must be kept for three years after the date of hire or one year after the date of termination, whichever is longer. 

When it comes to keeping copies of employee documents confirming identity, employers have a choice. If they decide to preserve copies of these documents, they must do so consistently and maintain copies for all employees regardless of background or citizenship status. 

Rachel Zheliabovskii is a specialist, B2C content, at SHRM.