First Do No Harm: How to Correct I-9 Mistakes the Right Way
[Editor’s note: today’s blog is courtesy of Gary Endelman of Fong & Associates LLP]. The fates have cursed you and your I-9s have mistakes. Unless you subscribe to the ancient samurai code and willingly accept disembowelment to erase your shame and preserve your family honor, what can you do? Fear not intrepid reader! All is not lost. First and foremost, call a competent immigration lawyer right away! As discussed by a learned colleague on this blog, self-audits typically make matters worse, so you should always consult with a knowledgeable immigration attorney before embarking on your I-9 correction quest. Now, assuming you’re under the sheltering arms of your attorney, here is the fundamental principle of correcting I-9s: In the words of the ancient Hippocratic oath, first do no harm. This means that any corrections should not make the problem worse. Do not use whiteout, correction tape or black marker and never correct what does not need to be fixed. Resist the temptation, for example, to re-verify a “green card” because it has a 10-year expiration date so long as it is still valid at time of hire. If you feel an irresistible urge to over-document as penance, much as W.C. Fields with exercise, just sit down until it passes. Consider some of these other basic but hopefully helpful suggestions to save the day:
- Whatever you do, do it for everyone. A consistent I-9 correction philosophy that is consistently applied is your best defense against having the Office of Special Counsel pay a visit to discuss unlawful discrimination under IRCA or Title VII. Deciding to re-I-9, for example, on a selective basis is risky business.
- Thanks to that immigration sensei, Sonny Bono, if the missing data is technical or procedural, you will have at least 10 days after the audit, and might be able to beg and plead for more, to fix the problem. So, before you charge down the path of I-9 correction, assess the severity and character of what went wrong.
- All mistakes are not created equal. It is eminently possible, even preferable, to remedy minor flaws without creating a new I-9. Any corrections should be made in different color ink. Always initial and date them as of the date they are made. Do not backdate corrections under any circumstances or the soul of your I-9 will be cut off from the Force.
- Do not cross out the wrong stuff. Line through it and insert the correct clarification above where it can be clearly seen without a microscope or magnifying glass. A single line should suffice. No need to let your enthusiasm run amuck.
- Remember who can make the corrections. Only the employee should correct Section One. The Employer corrects Section Two. Any attempt by the Employer to correct Section One will make ICE uncomfortable and who wants that? They fear fraud. At the very least, follow the sage advice of I-9 expert Mary Pivec and obtain written consent by the employee to such modifications. The last thing you want is to leave the impression that you have “doctored” the forms to minimize your exposure. Any new notations on an old I-9 may, for precisely this reason, arouse suspicion and invite scrutiny. Avoid making explanatory notes. This is doubly so when such comments contain extraneous information wholly unrelated to the right of the employee to work in the United States. For all these reasons, you may want to staple an audit slip to the I-9 to indicate the date of the correction and the fact that it made during a self-audit before any notice of inspection was served.
- Only the same representative of the Employer who originally signed Section Two should make corrections for this was the person who saw the original documents and attested to having done so under penalty of perjury. The law does not allow one person reviewing the evidence while another signs the I-9. If the former no longer works for the Employer, wisdom suggests completion of a new form in preference to alteration of the existing one. If you go down this path less traveled, be sure to keep the old I-9 and attach it to its new relation.
- Remember the basics: every employee hired after November 6, 1986 should have an I-9. Always kick off your internal audit by combing through a payroll roster of current and termed employees. That is where ICE will begin.
- If the information is correct but simply placed in the wrong column, just draw an arrow to its proper home and initial/date the change.
- When the current I-9 is fundamentally flawed, cut your losses and do a new one. So, for example, if you unearth an unsigned or undated form, most likely things have passed the point of remediation. Just have the employee complete a new I-9 with appropriate supporting documentation of their own choosing and note on audit slip why these actions have been taken. Multiple or substantive errors mean another I-9. It is neither legal nor wise to correct missing or false information after the fact. Make sure a new I-9 is necessary for asking an employee to do this a second time when it is not can be considered document abuse.
- If you have a boatload of corrections, consider preparing a summary of all changes in a table or chart format that indicates what was corrected and why. Not only might this please ICE but, given the high rate of HR turnover, such an explanation, which could also be presented in memo form, will save both time and heartburn for a future HR manager who has no idea why there are different colors or ink or what all these initials signify. Even a short paragraph can help to preserve institutional memory.
- Do not wait for ICE to show up to make things right. Corrections made after the fact are not going to impress and will not lessen the penalty. If you can act pro-actively, do so to demonstrate good faith. Always correct any flaw prior to an audit.
So, there you have it, a survival guide to I-9 corrections. But remember, your best guide to survival is to work closely with a competent immigration attorney who can navigate you through the murky and turbulent waters of I-9 compliance! Disclaimer: The information contained in this blog post is provided for educational purposes only, and should not be construed as legal advice or as a substitute for legal counsel. If you have questions concerning how I-9 and E-Verify rules apply to your specific situation, please seek legal advice from a licensed professional attorney.