What to Do in Case of Missing or Incomplete I-9 Forms

Due to the complex and ever-shifting employment eligibility verification (Form I-9) regulations, employers may find that they have missing or incomplete I-9 forms. As such, employers often wonder whether their employees can complete a new Form I-9.

The short answer is, “it depends.” Depending on the errors, employees may have the opportunity to complete a new form. Most employers would encounter two common mistakes: technical or procedural errors and substantive errors. Depending on which errors appeared would determine whether employees can fill out a new form.

Errors

Businesses can correct minor issues known as technical or procedural errors, but they must do so within ten business days. Employers who correct these mistakes will not get fined. For example, some technical or procedural errors include not completing the preparation or translator section if someone helped the employee fill out Section 1. Another example involves Section 3, where employers may forget to add an employee’s rehiring date.

Employers may encounter many other technical or procedural errors when filing Form I-9s with their employees. ICE will grant them ten days to correct the mistakes regardless of the number. However, employers cannot correct substantive errors. Substantive errors end with failure to verify an employee’s employment eligibility.

Substantive errors typically appear during audits, often leading to fines for every error found until the statute of limitations runs out. Examples of substantive violations include inadequately completing or failing to provide Form I-9 for employees.

Recently, the U.S. Department of Justice’s Chief Administrative Hearing Office explained how to address both errors. According to the agency, the Immigration and Nationality Act (INA) can help employers by reducing their liability for minor, unintentional errors. However, employers must still comply with the basic Form I-9 requirements.

Missing Forms

Another common issue employers run into is missing forms. Should a business discover it has lost, destroyed, or incorrectly stored several I-9 forms, it must correct the situation immediately. In this case, the employer and involved employee should complete a new I-9 if the original remains missing.

Completing a new Form I-9 corrects the error and shows good faith to ICE. As such, an audit highlighting the missing original will consider the effort made to replace it when determining any penalties.

Penalties

Failure to comply with the I-9 verification regulations could lead to penalties. An example of failing to comply includes not retaining Form I-9 for employees. The first offense’s penalty may vary anywhere between $110 to $1100. When assessing penalties, the agency will consider several factors, such as the following:

• Good faith efforts that the employer may have taken;
• The size of the employer;
• Whether or not the employee involved in the situation is an unauthorized alien;
• The seriousness of the violation; and
• Whether the employer has had previous offenses.

These factors may not have equal consideration, and the agency may consider other factors during the assessment.

Employers should never backdate a Form I-9. Furthermore, employers who make false attestations or statements to meet employment verifications could face various penalties. For example, employers could face fines, a sentence of up to five years in prison, or both.

The punishment could prove more severe for some fraud cases. Such cases include an individual participating in or committing acts related to document fraud. The fine for a first offense is $375 and can increase to $3,200 for every fraudulent document involved. For subsequent breaches, the penalties increase from $3,200 to $6,500 for every record included. Finally, the agency will add these fines for fraud to the substantive errors fines.

Employer Takeaways

To avoid fines quickly adding up, employers should carefully complete and store all Form I-9s. The best way to ensure complete compliance is by using an electronic I-9 management tool. This tool will guide employers when completing the form. In addition, it will ensure proper maintenance and storage for review when needed.

Ensure compliance today by switching to an electronic I-9 management tool with I-9 Compliance.