The Immigration Reform and Control Act of 1986 (IRCA) was made to stop people from working in the United States who were not allowed to do so. The act says that employers have to fill out an I 9 audit form for every new worker within three days of hiring them.
Employers can show that they are following the law by following the requirements for I-9 verification and treating all new hires the same.
Fill out the I-9 form for everyone you hire. This form shows that the people who are hired are allowed to work in the U.S.
Allow employees to show any legal document or a combination of legal documents. Employers can’t give more weight to one document over another when filling out the I-9 form. As long as the documents haven’t expired, are on the list of acceptable documents on the most recent Form I-9, look real, and were given to the person presenting them, they should be accepted. At the end of the Form I-9, a list of acceptable documents can be found.
I-9s should be updated and checked as needed. See How to change or double-check I-9 forms.
Employers must make sure that all I-9 forms are filled out correctly and in order. Here is a step-by-step guide to checking I-9 forms.
Step 1: Get all of your I-9 forms together.
Employers must make sure that every current employee who works for them in the United States has a Form I-9 on file. Employers should keep a list of current workers for whom they do not have a Form I-9.
Employers shouldn’t have an I-9 for non-employees who may do work, like volunteers, independent contractors, or consultants. If an employer has an I-9 for these people, it should be taken out of the official Form I-9 file for that employer.
I-9 forms should be kept in two files by employers:
Forms I-9 (electronic or paper) for employees who are already working.
Forms I-9 (either online or on paper) for employees who have been fired.
Each of these I-9 forms will be dealt with separately and in the order of their importance. Current employees who don’t have a Form I-9 on file should be checked for eligibility to work in the United States as soon as possible. The next most important thing will be to check the Forms I-9 on file for current employees to make sure they were filled out correctly. Handling I-9 forms for fired employees will be the least important thing to do.
Step 2: Get I-9 forms for current employees who don’t have them.
In general, an I-9 form is not needed for anyone who was hired before November 6, 1986, and is still working for the company. But all employees hired on or after this date who don’t have an I-9 on file will need to be contacted and told to bring documents from List A or Lists B and C of Form I-9.
When talking to employees, you should be sorry but firm. Employers should say sorry if for some reason this paperwork was lost or wasn’t collected at the start of the job.
They should tell the employee that the form is required by federal law and that he or she won’t be able to keep working for the company if he or she can’t give these documents.
It’s better to talk to each employee individually about this than to talk to a group of employees. Talking to an employee in person is enough, but employers can also send an employee an email or a memo.
The Form I-9 audit file should have copies of all messages sent to employees who are missing I-9s.
Organizations should set a date by which employees must turn in their paperwork. It is suggested that the employee bring the items to work with him or her the next day. If an employee has the right paperwork with them, the employer should sit down with them right away and fill out Form I-9. Employers must look at the originals of their documents, not copies.
The Form I-9 should be filled out with current dates. The date of hire is the actual date the employee started working, which could have been years ago. Employers should include a short note with the corrected Form I-9 that says there was no Form I-9 on file and that the employee filled out the Form I-9 during the audit.
This will show that the employer is trying to follow the rules in a good faith way.
The employee’s name can be crossed off the audit list, and the employer can add the completed Form I-9 to its file of Forms I-9 for current employees.
Some employees might not know where to look for their papers. According to the United States Citizenship and Immigration Services (USCIS) Handbook for Employers, certain receipts may be accepted in place of the actual document for a certain amount of time.
In general, a receipt for a document that was lost, stolen, or damaged may be valid for up to 90 days. For refugees and legal permanent residents, there are also document receipts that can be shown. If a receipt doesn’t meet the requirements set by USCIS, it might not be able to replace a document from List A, List B, or List C.
If an employee doesn’t give the required documents in time, the employer should either fire the employee or put him or her on leave.
If that is what the company wants, the employee should be told that he or she may be able to keep working for the company if he or she can show proof that they are allowed to work in the United States.
Step 3: Look at the current employees’ Forms I-9.
This part of the I-9 auditing process is the hardest. To make sure compliance, a number of things must be done correctly. In addition to the USCIS Handbook for Employers, the USCIS website has a section called “I-9 Central” that has more information about the I-9 process as a whole.
Anyone doing an I-9 audit should have these resources on hand because they answer a lot of questions about how to fill out the Form I-9 correctly.
Technical mistakes can be fixed on the same I-9 form, but mistakes that are more important might need a new I-9.
See this USCIS page on how to fix Form I-9 for more information on the difference between technical and substantive errors.
Lastly, employers should make it clear that a change is a correction. They can do this by using a different color of ink and making sure changes are initiated and dated with the current date.
As employers start this process, they should put the I-9 forms in two different files. The I-9 forms that have been filled out correctly should go in the first file. The I-9s with mistakes are in the second file. In Step 4, we talk about how to fix these mistakes.
In each section of the Form I-9, employers need to check the following:
Part One
Name, address, other names used, and date of birth all need to be filled out.
The Social Security number is not required on the current Form I-9, unless the employer is part of the E-verify program.
The fields for email address and phone number are optional.
The employee must write his or her immigration status on the form and sign and date it.
The preparer or translator section only needs to be filled out if Section 1 was filled out by someone other than the employee.
Part Two
The right document needs to be put in the right column. For instance, an employer must make sure that a document on List B is actually on List B and not List C or List A.
Each document must have all of the required information filled out.
The documents on the list must show that you are who you say you are and that you are allowed to work in the U.S.
The section for certification needs to be filled out, including the date the employee started working.
Section 2 of the form must be filled out and signed by a company representative on the date that the employee’s documents were looked at.
Part Three
This section should only be filled out if the worker’s work permit has expired or if the worker has been hired again. It can also be filled out if the employee changed their name, but this is not necessary. Most of the time, Section 3 will be empty.
Permanent resident cards that have expired and documents on List B of the Form I-9 do not need to be checked again. When the I-9 is first filled out, these documents can’t have expired, but if they do expire later, that doesn’t mean the I-9 needs to be checked again.
Step 4: Fix any mistakes
The first thing employers should do is make a list of the I-9 forms that have mistakes. This will become the audit log that shows the employer is trying to make sure Form I-9 compliance in good faith.
The log should have three columns: the name of the employee, the error(s), and what was done to fix the error. For now, the employer will fill in the first two columns of the log with the name of the employee and the error that was found.
Employers can use the USCIS Handbook for Employers to help them figure out how to fix each wrong I-9 as they go through them. From what the Handbook says: “The best way to fix Form I-9 is to draw a line through the parts that have wrong information and then fill in the right information.
Sign and date the change you are making. If you have changed Forms I-9 in the past with White-Out, USCIS suggests that you attach a note to the corrected Forms I-9 that explains what happened.
Make sure to sign the note and date it.” Even though the Handbook doesn’t say how to fix specific mistakes, it does say what the requirements are for filling out the form and what kinds of identification are acceptable. In the table below, you’ll find a list of common mistakes on Form I-9 and ideas for how to fix them.
Step 5: I-9 forms for fired employees
Employers must keep I-9s for three years after an employee’s date of hire or for one year after the employee’s date of termination, whichever date is later. See Step 5 of the How to Keep and File I-9 Forms guide to figure out how long to keep Forms I-9 for former employees.
Employers should use a process similar to the one described in Step 4 to fix any mistakes they find on the I-9s of former employees who have been fired. Employers won’t be able to fix mistakes that need the former worker’s help (e.g., missing documentation, missing signature). All corrections and times when the employer was unable to make corrections should be written down on the Form I-9 audit log and on a memo that is attached to the I-9.
Step 6: Finish the Audit
As corrections are made and missing I-9s start to come in, it will be the employer’s job to organize the I-9s and make it clear what steps were taken during the audit. For more information on how to set up their I-9 files, employers can look at the guide on how to keep and file Forms I-9. Employers might want to print out this procedure to keep track of what they did during the audit.
Employers should also keep the audit logs for Form I-9 and any messages sent to employees about the I-9 audit process. Employers may want to keep the audit paperwork in a separate Form I-9 audit file or with the I-9 forms themselves in their files.
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