Government Guidance Raises New Questions on Correcting I-9s through Self-Audits

The New Year is upon us, and once again it’s time for employers across the U.S. to revisit that thorny, lingering compliance concern that we’ve been trying oh so hard to forget: all of those really old (and frequently terrible) I-9 forms lurking in our files. Many of these I-9s are just screaming for attention. They’re incomplete, incorrect, or sometimes just plain illegible. Either way, they represent a potential liability for the unprepared employer who gets a visit from an I-9 auditor this year.

But all is not lost! As we discussed in our last blog post of 2015, the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE) have released joint guidance on how to properly conduct an internal I-9 audit without getting yourselves into more trouble than you were before (an important goal, for sure).

In today’s blog, we’ll dig a bit deeper into this new guidance and discuss their recommendations on how to resolve some very tricky (yet very common) I-9 mistakes.

Forms with Multiple Errors in Section 2 or 3

Conducting an internal I-9 audit can sometimes feel like medical triage – once you have all the I-9s together, you quickly scan the room in the hopes of identifying those most in need of help. Some I-9s have minor cuts and bruises (a missing a DOB, a business without an address, etc.), whereas other I-9s are in really bad shape. Symptoms might include invalid documents, information recorded in the wrong spaces, scribbles all over the available whitespaces, etc. Many of us in the audit field understand that these I-9s may be beyond repair – requiring us to take the drastic step of completing a new I-9 form for the employee.

But is there another option? Apparently, yes. In their new guidance document, the government agencies are now recommending a slightly different process which involves redoing only those sections containing errors on a new Form I-9 and then attaching it to the original form.

To my knowledge, the agencies have never publicly instructed employers to re-do only certain sections of the form, and it’s not entirely clear how this would work in practice. For example, what if one HR person had recorded the document information in the wrong spaces, and now a different HR manager wants to correct the mistakes based on photocopies of the documents that are in the file. Would the second HR manager complete the entire section 2 and also sign it – even though he or she never saw the original documents? Or would they simply insert the correct document information on the new form and initial/date without signing the bottom of the form?

Wrong Version of the Form

Another very common mistake is when an employer accidentally uses an older version of the I-9 for a new hire employee (e.g., using the 8/7/09 version for an employee hired today). For many years, the USCIS has advised that the “best way” to correct this mistake is for both the employer and employee to complete the current version of the form and staple the previously completed I-9 to the current version. There are also cases where it may not even be necessary to complete a new form at all (particularly if the error occurred before December 26, 2007 – a grace period established by DHS in a 11/26/07 federal register notice).

Now, with this latest guidance, we have a slightly different instruction. According to the agencies, “as long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, the employer may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version noting why the current blank version is attached (e.g., wrong edition was used at time of hire). As an alternative, the employer may draft an explanation and attach it to the outdated completed Form I-9 explaining that the wrong form was filled out correctly and in good faith.”

Suspect looking photocopy?

The new joint guidance also raises an interesting dilemma for the I-9 self-auditor: what if you discover, upon examination of your I-9 files, that the photocopy of your employee’s identity or employment authorization document looks a bit fishy. Can you (or should you) ask the employee to present documentation, based merely on an examination of a photocopied document?

The government does not mince words on this particular point, noting quite clearly that an employer should not request documentation from an employee solely because photocopies of documents are unclear or perhaps do not appear to be genuine. Instead, the employer should only investigate such issues based on the totality of the circumstances – which most definitely should involve more than a faded photocopy.

Just last week, the OSC also released a revised Technical Assistance Letter which further reinforces the notion that employers should be careful when scrutinizing employment eligibility documents. Alberto Ruisanchez, the Deputy Special Counsel of the OSC, made it very clear that employees should be provided every opportunity to demonstrate their eligibility to work in the U.S. – by either presenting the original document under question or a different document of their choosing.

Requesting Alternate Documentation

Now, imagine you have a case where an employee presented an unacceptable document during the I-9 process, which you discovered during your self-audit. Following the government’s instructions, you inform the employee of the discrepancy and ask him/her to present something else from the list of acceptable documents. The employee says no problem and promptly goes into hiding, carefully avoiding or ignoring your follow-up requests. How long should you chase the employee for the missing document? Should you give him/her 90 days, as was once suggested by the DHS no-match rule in 2007 (which was later rescinded)? Or should it be 10 days, the amount of time that ICE usually provides after issuing a Notice of Suspect Documents?

Not surprisingly, it depends. According to the new guidance, “the employer should provide all employees who claim they are work-authorized with a reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy.” Ah yes, the “reasonableness standard” – that fuzzy concept in law which is open to so much interpretation (and confusion).

So how would this play out in the real world? Here are four factors worth considering when drafting your policy:

  • The employer’s industry, including any contractual obligations (particularly with the federal government)
  • How much time should it take for employees to procure (or at least apply for) a replacement document?
  • Are there any unusual circumstances (personal or business-related) which would prevent the employee from obtaining the document in a timely fashion?
  • Are there other any other external factors (including related government investigations) which would have an impact?

Based on this analysis, the employer can then adopt a specific timeline (which is of course applied to all individuals without discrimination), and allow for well-defined exceptions as they arise. While this is not nearly as precise as some would like, it does provide employers with a certain amount of discretion in deciding how long they should wait on that non-responsive employee.

Re-I9ing vs. Self-Auditing

Over the years, employers have received conflicting guidance on whether it is permissible to re-I-9 an entire workforce in lieu of an internal I-9 audit. Previously, the OSC issued a Technical Assistance Letter to the NLRB in December 2011 on a similar issue where they noted that “[A]n employer may reverify employees’ documents when it discovers, during the course of conducting an audit of all I-9s in a non-discriminatory manner, that the I-9 forms or accompanying documents for some employees are missing or incomplete.” The letter did not address, however, whether it would only be prudent to do so for I-9s that are missing or incomplete, or whether an employer can complete new I-9s across the board regardless of the condition of the original I-9s.

Similarly, this new guidance takes a very cautious approach to the re-I9 option. In particular, the government notes, “An employer is cautioned against obtaining new Forms I-9 from its existing employees (absent acquisition or merger) without regard to whether a particular Form I-9 is deficient or without reason to believe that systematic deficiencies in the employer’s employment eligibility verification process call the integrity of all previously completed Forms I‑9 into question.”

Translation: yes, you can re-I9 your workforce but you had better be really sure that it’s necessary to do so. Moreover, some employers will also need to think about other employment-related issues that may arise from a broad-based re-i9 project such as notification requirements for certain unionized workforces.

E-Verify Issues

Sometimes, an I-9 self-audit also reveals some interesting (and occasionally thorny) E-Verify issues as well. You mean we were supposed to E-Verify ALL new hire employees? I thought for sure that whole TNC process was an optional step…

If these questions sound familiar to you, take note: the government has provided the following words of wisdom for addressing E-Verify mistakes:

  1. If you failed to use the E-Verify system after enrolling (i.e., deliberate non-use), do not go back and create cases after discovering the mistake. On the other hand, if you are using E-Verify and forget to submit one (or more employees) to the system, you should go back and create E-Verify cases.
  2. If you take adverse action against an employee based merely on the receipt of a TNC, you should consider taking corrective action (including extending an offer of re-employment) or at the very least documenting the entire situation.

Should we use a third party auditor?

Towards the end of the document, the government also notes that an employer may delegate a third party to conduct the internal audit, while noting that the employer is ultimately on the hook for any violations committed by the third party. Comforting, right?

As we’ve discussed in the past, there are actually many good reasons for reaching out to a qualified auditor (preferably an attorney) to assist in your I-9 remediation efforts. Devising a solid I-9 audit plan is not for the faint of heart. In order to form a strategy, you will need to closely examine the nature of the I-9 errors, investigate issues of undocumented workers, and make determinations as to the running of the statute of limitations. You’ll also have to become familiar with the various ICE penalty guidance memos (which are not exactly light reading). Moreover, working with an attorney provides you with that invaluable shield known as attorney client privilege – a useful tool when I-9 secrets come out of the closet.

Summary

Overall, I think this new guidance is a step in the right direction and will (hopefully) reduce the “mystique” surrounding I-9 corrections and remediation in general. The real question, however, is whether ICE auditors out in the field will uniformly follow these guidelines in all occasions (a goal which has not always been achieved in the past). Certainly, time will tell…but in the interim, employers are well-advised to carefully review this new guidance and document their audit decisions (whatever they may be).

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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 the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.