This’ll keep you up at night: ICE (the Department of Homeland Security’s Immigration and Customs Enforcement) sometimes investigates a business for months without the business’s knowledge before serving a notice of I-9 inspection. Though the I-9 might seem simple, virtually every business and HR manager makes mistakes–often simple to fix–that can expose their company to thousands of dollars in fines & penalties. What’s more, there have been lots of changes recently, and chances are, you’re either already making mistakes or could do a few simple things to make your compliance easier (and make it easier to sleep at night). But I-9 compliance doesn’t have to be difficult or cumbersome. The tactics in this article make it easy for you. Ready? Let’s dig in! (If you have questions, you can always call us for a quick chat at 732.955.7330).
#1: At-a-glance I-9 compliance with this simple toolOn the surface, the I-9 seems easy enough, but if you don’t have a way to track current & past employees, what’s needed from each, and when past employee records can be destroyed, you open a potentially very expensive can of worms. With this simple tool, you can, at a glance, see exactly what’s needed and from whom. No more guessing or losing sleep over whether you’re in compliance.
Here’s how:Download our simple I-9 Auto-Manager Tool (no cost), that lets you track all your employees in 1 place. You can get access in 10 seconds: Then, write in the name of each active employee on a separate row. Next, enter their hire date in the Hire column. Then, schedule a time on your calendar for 30 minutes next week to fill in all your company’s past employees who were hired in the past 3 years. (When you fill in their Hire and Termination dates, the worksheet will automagically calculate when you can shred the employee’s I-9 per the ISCIS rule of either three years after the date of hire or one year after the termination date, whichever is later). That’s it for now. If you feel especially motivated, you can fill in the Re-Verify By column date for employees who have a temporary work authorization; everyone with permanent work authorization can have ‘n/a’ in the Re-Verify By column.
#2: Use this simple tool to prevent I-9 penalties & finesIn case you’re actually audited by ICE (Immigration and Customs Enforcement), even if you have compliance issues, showing you made a good faith effort to ensure I-9 compliance can prevent higher fines. Good faith efforts to comply with I-9 regulations include documenting your actions to identify & rectify any errors.
Here’s how:Download our simple I-9 Audit Compliance Log, that lets you track all your I-9 activities in 1 place. This simple tool will demonstrate your good-faith efforts to comply with I-9 rules in case your company is audited. For employees where you need corrected I-9 information or documents, write the name of each active employee on a separate row. Next, in the Issue column, write the error or issue needing correction. Finally, in the Action Date and Action Taken columns, write the date you took action and what action you took. For example: 6/14/2017, Requested employee signature on I-9.
#3: Spot fake documents like a CSI proYou DON’T need to be a document expert to comply with I-9 documentation requirements. You only need to act in good faith. Still, you can tap into your inner CSI, put on your detective cap, and use these quick tricks to spot potentially fake identification documents.
Here’s how:Remember, you don’t have to do any exhaustive document analysis. The following quick checklist is a simple way to systematize your process. Print this simple checklist and keep it in your new-employee onboarding file so you can be systematic in looking for the most common signs of fraudulent documents:
- misspellings (e.g., “identifation” or “Imigration”)
- crooked lines
- pictures that are out of focus
- computer-generated signatures
- overly large or small fonts
- extended spacing between letters
#4: Automatic I-9 compliance: create a monthly recurring appointment for a quick self-auditSince I-9 paperwork errors can cost up to $2,156 per employee in fines, it’s crucial to have a process to manage your compliance. The easiest way to do that is to pre-schedule a day & time every month where you dedicate that time, even just 60 minutes, to reviewing I-9s. Keeping that I-9 self-audit appointment sacrosanct ensures nothing else distracts you from actually doing it.
Here’s how:First, decide a day and time of the month when you can have 60 minutes. For example, the first Thursday of each month at 8 a.m. Next, in your calendar software, create an appointment for next month on that day at that time. Name it “I-9 Monthly Audit”. Set your availability to ‘busy’ or even ‘out of office’. Set the appointment to recur monthly. Last, on your first appointment (the one for next month), in the notes, write what you’re going to do during that time; that way, you won’t have to figure out what you’re supposed to do during that time. For example: “Enter all terminated employees into the spreadsheet, along with their hire & termination dates.”
#5: Prevent discrimination by moving I-9s out of personnel files and into their own fileKeeping everything in one place for every employee might be simple. But when it comes to I-9s, this is definitely an area where that simplicity creates liability for potential discrimination lawsuits. The simple fix to prevent that exposure is to move everything I-9 related out of the personnel file, and into a separate location solely for I-9s. Even better, once those I-9s are in their own storage location, they’re actually easier to secure and manage. No more shuffling through the employee’s file when you’re trying to manage I-9 compliance.
Here’s how:Go to your personnel files, take the I-9 from the personnel file, then put those I-9s in a separate file or binder. Put the I-9s in alphabetical order (last name, then first name) so they’re easy to find in the future. Put that file or binders of I-9s in a locked file cabinet, lock it, and give a copy of the key to your HR assistant, your boss, and your CEO.
#6: Purge & shred at a glance: use this simple tool to automatically see which I-9s to retainIt’s not enough to simply file-and-forget I-9s from current and past employees. To reduce liability, it’s a best practice to regularly purge I-9s when they’re no longer needed; that way, you don’t waste time trying to manage compliance for I-9s for long-ago terminated employees, and, if you’re audited, you don’t have any out-of-compliance, irrelevant I-9s on hand. Another reason it’s crucial to shred I-9s that don’t need to be retained: If an employee brings a discrimination suit, their attorney can subpoena ALL your I-9s; if they find any inconsistencies, it’s easier for them to build their case against you.
Here’s how:If you haven’t already done it, download our simple I-9 Auto-Manager Tool (no cost) that lets you, on a single page, manage all your I-9s. That tool has a column to Toss/Shred, which automatically tells you when you can shred I-9s that are no longer needed. Get the tool in 10 seconds: (Yes, the tool automagically tells you when each I-9 is no longer needed: either 1 year after date of termination or 3 years after the date of hire, whichever is longer).
#7: To photocopy or not? The simple answerShould you photocopy documents for the I-9? It’s your choice, but if you photocopy docs for 1 worker, you need to do it for EVERYONE. That way, you avoid the appearance of discrimination, and can thus limit your company’s liability. Now, what if you have photocopied documents for only some of your employees? Well, you have 2 choices: either get photocopies for the rest of your employees (this is the harder route), or shred the photocopies that you’ve already made (simpler). Again, your goal is consistency: treating every employee the same.
Here’s how:In this case, simpler is better: forgo photocopies of identity & work authorization documents. To be consistent for all employees, review your I-9 files, and remove & shred any photocopied identity & work authorization documents.
#8: Put it on lockdown: the 4 people who need access to I-9sTo prevent actual or perceived discrimination, you need to lock down & restrict access to I-9s. Similar to how an employee’s supervisor shouldn’t have access to their medical records, the supervisor shouldn’t have access to the employee’s I-9. There are really only 4 people who need access to your company’s I-9’s: the CEO, HR manager, the HR manager’s boss, and the HR assistant.
Here’s how:Got your I-9s all in a dedicated file? Great. Now, put that file in a locked file cabinet, lock it, and give a copy of the key to your HR assistant, your boss, and your CEO.
#9: Prevent the problem: No docs, no workThe best way to keep compliant is to get the I-9 completed on the employee’s first day. Otherwise, people get busy, forget, and before you realize it, you can be out of compliance. Remember: the employee isn’t allowed to work if they’re not eligible.
Here’s how:In your offer letter, attach a copy of the list of acceptable documents that the employee can provide for the I-9. Also in that offer letter, clearly state that the employee must bring those I-9 documents on their first day of work. You can use the following verbiage:
Attached is a list of identity and employment authorization documents that you’ll need to bring on your first day. You must have those documents to begin work.You can print a copy of the acceptable documents at the following page on the USCIS site: https://www.uscis.gov/i-9-central/acceptable-documents
#10: Start fresh when acquiring a company’s employees: they all need a new I-9When your company merges with or acquires another company, you don’t want to be liable for someone else’s slipshod I-9s, or simply assume everything’s in order (only to find out later you’re out of compliance). The best way to keep compliant & run a clean HR shop is to simply get a new I-9 from all the acquired employees.
Here’s how:Simply send a form letter to all newly-acquired employees, similar to what you’d send in your offer. You can use the following verbiage:
As part of our acquisition, we need to establish current work authorization for all employees. Attached is a list of identity and employment authorization documents that you’ll need to bring by [your deadline].You can print a copy of the acceptable documents at the following page on the USCIS site: https://www.uscis.gov/i-9-central/acceptable-documents
#11: Use the “smart” I-9 to prevent common (but costly) mistakesIf you’re like most businesses who don’t use I-9 software, you’re either completing a paper I-9 or using the electronic PDF version. Either way, paper or PDF, there are lots of ways to make easy mistakes that expose you to fines. Fortunately, USCIS now has a “smart” I-9 form that prevents a lot of the more common errors. It’s simple to use, and immediately lets you know and, in some cases, prevents you from entering incorrect information.
Here’s how:There are 2 ways to complete the new “smart” I-9:
- Either download the fillable pdf form from USCIS via this link: https://www.uscis.gov/sites/default/files/files/form/i-9.pdf
- Or, you can download a desktop widget from USCIS that lets you use a “smart” I-9, plus, lets you use E-Verify at the same time. You can download that USCIS I-9 desktop widget here: https://www.uscis.gov/i-9-central/form-i-9-desktop-widget
#12: Why paper is better: easier compliance than electronic I-9 storageYes, it’s the 21st century, and you’d think that electronic is better for everything; after all, lots of businesses are moving toward being paperless. But for I-9s, storing them electronically can actually expose you to more liability, since, unless you use I-9 management software, storing I-9s electronically has more complex requirements than simple paper storage. Strange as that may seem, it’s primarily because of the audit trail requirement for electronic storage.
Here’s how:OK, this is just too simple: print the completed I-9, then store it in your locked I-9 file. This is probably the best, easiest option for most employers (typically, electronic I-9 management software only makes sense for very large employers or employers with large numbers of foreign workers and/or multiple international locations).
#13: The 2 questions for pre-screening candidates (without breaking the law)You probably already pre-screen candidates, usually to make sure they’re a fit for the position. But pre-screening candidates to ensure their employment eligibility is a potential minefield, that exposes you and your managers to breaking the law before you even extend an offer. Thankfully, there are 2 simple questions that let you legally pre-screen candidates’ eligibility.
Here’s how:The Department of Justice’s Office of Special Counsel has stated that the following language is appropriate to ask prior to hire:
Copy & paste those questions into your interview checklist.
- Are you legally authorized to work in the United States?
- Do you now or in the future require sponsorship for employment visa status?
#14: Keep it simple: 2 binders for your I-9s: active vs. terminated employeesSure, you could keep all your I-9s in a single binder, but it’s just as easy, and creates more clarity to have 2 binders: 1 for active employees, and 1 for terminated employees. And, if you’re the new HR person at your company, that’s a great time to review all personnel files, and move the I-9s to your dedicated I-9 binders. That way, you prevent the appearance of discrimination from having I-9s in personnel files.
Here’s how:Get 2 binders, and label one “I-9s: Active”, and the other “I-9s: Terminated”. Put all active employees’ I-9s in the Active binder, and those who’ve been terminated in the Terminated binder. File employees alphabetically for easier searching. Then, when an employee leaves or is terminated, move their I-9 to the Terminated binder. Last, enter their termination date in the simple I-9 Auto-Manager Tool (no cost) that you can download here; the tool auto-calculates the Toss/Shred date for that employee’s I-9.
#15: 4 printable downloads that keep you currentJust when you think you’ve got everything buttoned up and current, the rules & regulations change. It’s not easy keeping track of everything, and if you fail to comply, you can be liable for expensive fines. The easy way to keep up to date on current requirements is to give yourself a cheat-sheet of what’s needed, along with the most current I-9 form.
Here’s how:Download the following 3 documents:
- USCIS’s current I-9 handbook for employers
- USCIS’s list of acceptable documents for the I-9
- The latest I-9 (the “smart” version)