Employers: Review Form I-9 Practices to Prepare for the Trump Administration

As has been discussed extensively during this most recent election cycle, the incoming Trump administration has indicated a desire to address illegal immigration, including mass deportations of undocumented workers, within the first 100 days following President Trump’s inauguration. In addition to deportation actions, the returning Trump administration may also ramp up enforcement activities against U.S. employers who employ undocumented workers. It is recommended that employers prepare now for the possible increase in worksite enforcement activities and take steps to ensure USCIS Form I-9s are in order.

The following is a list of the most common Form I-9 errors made by employers and which might raise issues during an audit, as well as recommendations for how to avoid those mistakes.

Failure to Timely Complete the Form I-9

• Section 1 must be completed by the employee on or before the first day of work, and Section 2 must be completed by the employer within three business days of the employee’s start date.

Using the Form I-9 as an Applicant Screening Tool is not Permitted

• Although Section 1 of the Form I-9 can be completed by the employee on or before the first date of employment, it should not be completed by the employee prior to the job being offered and accepted by the employee.

Incorrect or Incomplete Data Fields

• Missing signatures, incomplete fields, or incorrect dates can trigger fines/penalties.
• Although the employee is required to complete Section 1 of the Form I-9, the company’s authorized representative (typically a Human Resources professional) may carefully review Section 1 to ensure that the employee has completed all required fields. Missing fields and incomplete information in Section 1 still subject the company to fines.
• Some employees fail to check one of the boxes on Form I-9 attesting to citizenship or immigration status. The appropriate box must be selected by the employee.
• In Section 1, confirm that the employee has (i) inserted their USCIS number if box 3 (lawful permanent resident) is selected, or (ii) inserted their USCIS number, Form I-94 number, or foreign passport information if box 4 (a noncitizen) is selected.
• Failure of the employee to sign and date the Form I-9 can lead to substantive penalties.
• Employees sometimes incorrectly select the “noncitizen national” box when the proper selection should have been “a noncitizen.” Only individuals born in American Samoa, certain former citizens of the former Trust Territory of the Pacific Islands, and certain children of noncitizen nationals born abroad should be selecting the “noncitizen national” box.
• The company’s authorized representative is required to complete all of the mandatory fields in Section 2, including the first date of employment, name of the authorized representative, representative’s signature and job title, date the representative completed Section 2, the company’s business name, and company address.

Improper Document Verification and Unfair Documentary Practices

• Only accept documents which appear on the Form I-9 List of Acceptable Documents which is attached to the Form I-9.
• The employee must either present (i) one document from List A, which establishes both identity and work authorization, or (ii) a combination of one document from List B, which establishes identity, plus one document from List C, which establishes work authorization. Employers do not need to insert document information in all three lists.
• Employers cannot accept expired documents.
• It is the employee’s choice as to which documents they present, so long as such documents are not expired and appear on the List of Acceptable Documents
• If the employer is an E-Verify employer, remember to maintain certain documents presented by the employee. Maintaining copies of the identity and work authorization documents provided by the employee is also helpful when conducting internal audits.

Failure to Reverify Employment Authorization

• If an employee presents documentation evidencing employment authorization with an expiration date, reverify the employee’s employment authorization no later than the date employment authorization expires. The employer will need to complete the Supplement B, Reverification and Rehire addendum in such reverification situations.
• List B documents should not be reverified due to an expiration date (i.e., if a driver’s license was valid at the time the Form I-9 was completed, the company should not be reverifying the employee’s new driver’s license).
• Lawful permanent residents do not have expiring work authorization even though the “green card” lists an expiration date. If an employee selects the “lawful permanent resident” box in Section 1 and provides an unexpired Permanent Resident Card at the time the Form I-9 is completed, that employee should not be reverified when the Permanent Resident Card expires. The same situation applies for a U.S. citizen who presented a U.S. passport for the Form I-9 process – just because the U.S. passport has a future expiration date does not mean that the employee loses U.S. citizenship or the ability to work upon the passport expiration date. 
• Employment Authorization Documents (temporary work permits) are entirely different – the expiration dates on those documents are the date the employee’s work authorization expires.  However, employers should keep in mind that there are situations where the employee’s work authorization may be automatically extended, either by operation of law, or based on a timely extension filing.

Non-existent or Inaccurate Retention Practices

• It is important to maintain a Form I-9 on file for each employee on the company’s payroll. Only when an employee stops working for the company should the company calculate how much longer that Form I-9 must be retained. 
• Federal law requires employers to retain a Form I-9 for each employee for the greater of (i) three years after the date of hire, or (ii) one year after the date employment ends.

Conducting Internal Audits

• Regular self-audits can identify compliance gaps and with proper remediation, can turn noncompliant Form I-9s into compliant, or at least more compliant, I-9s.
• Employers may only correct errors made in Section 2 or Supplement B, Reverification and Rehire. Revisions in Section 1 should only be made by the employee.
• If the company discovers an error in Section 1 of an employee’s Form I-9, the company can ask the employee to correct the error, but corrections should not be backdated.
• Employers may consider contacting legal counsel to effectively navigate an internal audit and address compliance issues that might be present. 
• Identifying and correcting errors prior to ICE issuing a Notice of Inspection can reduce the company’s exposure to fines. Similarly, if a company receives a Notice of Inspection from ICE, the company should consider involving legal counsel as soon as possible.

Failure to Properly Handle Remote Hires

• With remote work becoming more prevalent, employers who participate in E-Verify and who are in good standing are qualified to remotely examine their employee’s documentation using a DHS-authorized alternative procedure at their E-Verify hiring sites. This alternative procedure allows the company to review Form I-9 documents and complete the Form I-9 through live video interaction, as opposed to being in person with the new hire.
• If the company chooses to offer the alternative procedure to new employees at an E-Verify hiring site, the company should do so consistently for all employees at that site. However, the company may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity. 
• USCIS has provided specific instructions that must be followed when conducting remote document examination.

Not Using Current Form I-9 Edition

• It is important to use the current version of the Form I-9, as USCIS periodically updates their form editions. The most recent version of the Form I-9, which includes the current List of Acceptable Documents, can be found on the USCIS website here.

Errors Within The Due Diligence Process in Corporate Transactions

• Employers who have acquired another company or have merged with another company may choose to treat employees who are continuing their employment with the related, successor, or reorganized employer as new hires or can continue their employment using the Form I-9 completed by the predecessor. Employers who choose to complete a new Form I-9 may do so before the merger or acquisition takes place as long as the employer has offered the acquired employee a job and the employee has accepted the offer. The employee must complete Section 1 no later than the first day of employment and the employer or the authorized representative must complete Section 2 within 3 business days of the employee’s first day of employment. Employers should enter the effective date of the acquisition or merger as the date each of these employees began employment in Section 2 of their new Form I-9. 
• Employers who choose to keep the previously completed Form I-9 accept responsibility for any errors or omissions on those inherited forms.

Errors in Using the Electronic Form I-9

• System Non-Compliance with Requirement: Electronic Form I-9 systems must comply with specific regulations, such as ensuring the ability to produce legible copies, providing detailed audit trails, and protecting against unauthorized access. Non-compliance with these technical requirements can lead to significant penalties.
• Lack of Proper Electronic Signatures and Authentication: Form I-9 compliance requires electronic signatures with specific security measures.
• Inadequate Audit Trails: Electronic I-9 systems must capture a detailed and dated audit trail of any changes made to each Form I-9.
• Access Control and Security Issues: Limit who has access to the electronic I-9s. Unauthorized access to electronic I-9 data can result in I-9 integrity issues, as well as potential violations of privacy laws.
• Inability to Produce I-9s On-Demand for ICE Audits: Electronic systems must allow quick access to I-9s, as well as the audit trails, in case of an ICE inspection.

Now, maybe more than ever, employers have every incentive to ensure that their Form I-9 practices comply with applicable law. With the incoming Trump administration, prudent employers will take steps to audit their Form I-9s prior to January 2025, and to make corrections and policy changes as necessary in order to be prepared for the likelihood of a significant increase in Form I-9 enforcement actions under the new administration.

Contact your Williams Mullen Team Member to discuss your company’s Form I-9 practices and compliance efforts.