Government Agencies Release New Guidance on Correcting I-9s through Self-Audits

Have you ever wondered how to correct a mistake on an employee’s Form I-9 without making matters worse? If so, you’re not alone. The I-9 has a 66-page manual on how to properly complete the form and otherwise comply with the employment eligibility verification process, but the guidance (thus far) on fixing past mistakes has been somewhat lacking. Part of the problem stems from the fact that there are so many ways (some quite creative) in which we can take what was supposed to be a “simple form” and royally mess it up.

My favorite errors occur in section 2 – particularly in the list of acceptable documents. Despite the form headings, instructions, and accompanying list, many of us succumb to the irresistible impulse to record all manner of documents (often in the wrong spaces and on the wrong version of the form). Hmm…I didn’t realize a gas card could be used to prove work authorization. But then again, if you drive a lot, you probably do work. So must be okay, right? Or there was the office manager who, in lieu of a document receipt, hand-wrote that she “knew Johnny since he was a toddler, and I can tell you for sure he’s US born and raised.” That has to count for something, right?

But that’s not all. Sometimes we discover these mistakes and go about fixing them through a variety of well-intentioned (but not necessarily well thought-out) annotations which involve post-it notes, magic marker, stick figures, and other secret code. The end result is often a masterpiece of mistakes, which threatens to turn a “not quite perfect” I-9 into a potential auditing nightmare.

And for many years, some of us have dreamt of the day when government agencies, walking hand in hand, would unite to provide the world with clear guidance on fixing I-9 mistakes. It would be a momentous occasion. With all of the nagging questions suddenly resolved, HR managers would at once rejoice with a red pen in one hand and the government’s guidance in the other – safe in the knowledge that these corrections would once and for all bring their I-9s into perfect compliance.

Has that day finally arrived? During the next couple of weeks, we’ll explore a brand new government guide (just released to the public) in a special two part series on I-9 remediation. This first article will introduce the long-awaited guidance and highlight some basic I-9 auditing pointers. Let’s begin…

ICE and OSC Join Forces

Last week, the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) announced the issuance of “Joint Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” You can download the 6-page guidance document from either the ICE website here or from the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) website here.

Why is the government releasing this guidance now, you might ask? Both agencies recognize that the increase of internal I-9 audits during the past few years has (oddly enough) increased the danger of making mistakes – particularly with respect to unlawful discrimination. We’ve seen this before during the new hire process – an overly eager manager throws caution to the wind and decides to ask their new hire employees for every document under the sun (just to “cover all bases” of course). During the past few years, the OSC has been steadily cracking down on employers who engage in this form of discrimination, and so it’s only natural that the agency would also take a keen interest in the I-9 correction process as well. OSC actually began reviewing self-audits way back in September 2012 through a stakeholder input session. Fast-forward three years, and now we have a brand new document for assisting employers in the tricky remediation process.

So now the question you’ve been dying to ask: does this new guidance answer all of those thorny procedural items on how to fix I-9s?

Before I begin, big thanks are in order to both ICE and OSC for putting together a very helpful (and fairly concise) document which will help a lot of employers figure out how to tackle their historical I-9 problem. While last week’s guidance does not necessarily break new ground with respect to I-9 corrective procedures, the government agencies have answered some frequently asked questions and also provided employers with additional food for thought before taking the I-9 remediation plunge.

Let’s take a closer look at some of the key pointers from this new document along with some best practices and suggestions.

Scope of the Self-Audit

The first logical step in conducting a self-audit is to determine how many I-9s you can actually stomach to review. Many attorneys recommend selecting a “sample population” of forms, so just that you can get a sense of the types of mistakes, potential liability, and effort involved to make corrections. Both agencies have now affirmed that you can indeed follow this practice of choosing a sample set, although the OSC cautions employers to avoid any kind of discriminatory criteria. So for example, reviewing only those I-9s completed for “foreigners” would probably be a bad idea.

Communication is Key

One of the biggest potential pitfalls of conducting an internal I-9 audit is disrupting your workforce and creating any real (or perceived) scrutiny of certain classes of employees. It’s only natural for employees to wonder why they are being asked to “show their papers” again, so you’ll want to clearly communicate the reason for the audit. In particular, the new guidance recommends the following:

  • Inform your employees in writing that you will conduct an I-9 audit (and include the reason as well – e.g., internal audit, in response to government directive, etc.). As part of this process, you should also give them an idea of what to expect (otherwise, they may conjure up all kinds of scary thoughts).
  • Consider the process you will have for fielding questions or concerns about the audit. Some employers provide FAQs with their self-audit notice, or at the very least, designate one or two individuals who will be available to answer any questions which may arise.
  • When a mistake is discovered, notify the employee in private, explain the deficiency, and provide supporting documentation (the I-9, copies of documents, etc.).
  • If the employee is not proficient in English, the employer should communicate in the appropriate language where possible.

Procedure for Correcting Errors or Omissions

The new guidance also restates some fairly well-known rules for transparently correcting mistakes from the famous “Virtue Memorandum” on the good faith compliance provision of the law, as well as other more recent DHS publications.  These include the following:

  • The employee (not the employer) should correct errors or omissions in Section 1 of the form. A preparer and/or translator may also assist as we recently discussed in our last blog here.
  • Conversely, the employer should correct errors or omissions in Sections 2 and 3.
  • The employee or employer (as applicable) should make corrections by drawing a line through the incorrect information, entering the corrected or omitted data, and initialing/dating the correction.
  • If the I-9 was never completed or is missing, the employer should complete a new I-9 (using the current version of the form) as soon as possible.
  • If either Section 1 or Section 2 was never completed, the employee (for Section 1) or the employer (for Section 2) should complete the section as soon as possible. In both scenarios, the employer should not backdate the form, but should clearly state the actual date employment began in the certification portion of Section 2. The employer should attach a signed and dated explanation of the corrective action taken.
  • If the employee is no longer working at the organization, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explaining why corrections could not be made (e.g., because the employee no longer works for the employer).
  • An employer should not conceal any changes made on the Form I-9—for example, by erasing text or using correction fluid.

Now I know what you’re thinking – yes yes, we already knew about these processes. But are there any additional pearls of wisdom for correcting I-9 deficiencies or dealing with employees in general?

Yes indeed! Stay tuned for part 2 where we will discuss forms with multiple errors, wrong I-9 versions, suspect-looking documents, and E-Verify blunders among other things.

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at LawLogix, where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.