Due to the complex and ever-shiftingemployment 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, theImmigration 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.
I've extensively dealt with the intricacies of employment eligibility verification, particularly Form I-9 regulations and compliance issues. The Form I-9 process involves several critical aspects such as technical, procedural, and substantive errors, each carrying its significance and implications for employers and employees.
Technical or procedural errors are those that might seem minor but can have substantial repercussions if not rectified within the stipulated timeframe. These errors involve sections not being completed properly, like the preparation or translator section, or missing details in Section 3, such as an employee's rehiring date. I'm well-versed in the grace period of ten business days that ICE grants for rectifying these errors without incurring fines.
Conversely, substantive errors in Form I-9 are much more critical. These errors lead to failures in verifying an employee's employment eligibility and can't be corrected. They often arise during audits and can result in fines, especially if multiple errors persist until the statute of limitations expires. Understanding the implications of substantive errors is crucial for employers during audits to avoid penalties.
Additionally, I'm familiar with the consequences of missing or lost I-9 forms. Employers encountering missing forms must rectify the situation promptly by completing a new Form I-9, demonstrating good faith efforts to ICE during audits. These efforts play a pivotal role in determining penalties in case of an audit uncovering missing originals.
Penalties for non-compliance with Form I-9 verification regulations can be substantial. These penalties vary based on factors like the employer's size, the nature of the violation, and previous offenses. Furthermore, I'm aware of the severe repercussions, including fines, imprisonment, or both, for false attestations or fraudulent statements related to employment verification.
Employers should prioritize meticulous completion and proper storage of Form I-9s to avoid penalties from accumulating. Using electronic I-9 management tools is highly advisable for ensuring accuracy, guiding completion, and facilitating proper storage and maintenance for future reviews.
Understanding these intricacies and the legal ramifications underscores the significance of compliance with Form I-9 regulations, safeguarding both employers and employees from potential penalties and legal entanglements.
