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Overcoming the Challenges of I-9 Compliance

Human Resources Today Best Article

It’s not easy to be I-9 compliantIt takes time and effort to:

  • Have employees complete forms properly
  • Review and make sure those forms are complete and accurate
  • Stay up to date on requirements
  • Create a repeatable process to do all this correctly and on time
  • Hire dedicated and professional staff to manage the process

Yet, it does pay to be compliant. ICE levied fines of $24.2 million in 2018 against companies found to be non-compliant with I-9 requirements.

Cost of Poor I-9 Compliance

The I-9 process can be tricky for many employers.

We’ve written this piece to help HR Managers complete I-9 forms- completely, accurately, and on time.

And ICE plans to increase its scrutiny by conducting up to 15,000 I-9 audits per year. You’ll want to make sure your I-9 program avoids the pitfalls of I-9 verification. To help, we’ve listed the biggest challenges employers face today and offer tips for remaining I-9 compliant.


1 You must give I-9 your full attention, right away

The Form I-9 consists of only three sections. Each section is rather small.

Easy, right?

Not so quick.

The I-9 process can be tricky for many employers

  • You must follow several steps correctly
  • There’s not much time to do this
  • It’s even more difficult if you’re a large company onboarding new employees across many locations

While there’s not a lot of information required for completing a Form I-9, there are some complexities to keep in mind.

For Section 1, you must:

The employee must complete this section between the day they accept and the first day of employment for pay.

It’s up to the employee (and any preparer or translator) to enter everything correctly.

It’s up to you to make sure they did. On time. Completely. And accurately.

And, to remind them to prove their identity 90 days before their work authorization expires, using List A or List C.

For Section 2…

It’s about verifying the employee’s identity and work authorization.

To do this, you must complete and sign Section 2 of Form I-9, Employment Eligibility Verification, within 3 business days from when the employee starts work.

Employees must present unexpired, original documentation proving their identity and employment authorization.

You must examine the documentation. Then, use this information to complete Section 2.

Know exactly what to do for The I-9 Process, From Start to Finish


2 You must know when I-9 requirements change

Otherwise, you could be doing things the wrong way. Which you just learned, can cost a bundle.

The form changes. Instructions get updated. Same for the timing of things.

For instance…

Before, instructions stated employees must complete Section 1 by the end of the first day of employment.

Now, ‘the end’ has been removed from that phrase. Meaning, the employee must complete Section 1 “by the first day of employment.”

Even more recently, the revised handbook states, employees must complete Section 1 at the time of hire (by the first day of their employment for pay). Remember, you cannot ask someone to complete Section 1 before accepting the job offer.

Lots to keep up with, right? And, the larger your organization, the harder it is to keep up and make the required changes to your processes.

Don’t forget about E-Verify, too.

E-Verify is web-based program to confirm employees are eligible to work in the U.S.

It compares information on an applicant’s Form I-9 with records from the Department of Homeland Security and the Social Security Administration.

It’s used by more than 750,000 businesses. And growing.

Twenty-four states now require employers to use E-Verify. Many more companies are making E-Verify mandatory for hiring their employees.

As a participant in the E-Verify program, you are required to confirm employee eligibility within three days of being hired.

Requirements change. And so must your process.


3 It’s tougher for large companies with many remote workers

Companies are relying more on remote workers and telecommuters across industries. Remote employees often work from home, far away from the corporate office.

Yet, you are still obligated to meet Form I-9 requirements. You must:

  • Verify employees by reviewing original documents
  • Complete Form I-9 with three business days of the employee’s start date.

In person. Not by Skype, email or fax.

Homeland Security recognizes this.

They made it so you can designate an authorized representative to:

  • Meet with the employee
  • Examine the documents to ensure they are genuine
  • Complete Section 2 of the Form I-9 on your company’s behalf

Representatives include: personnel officers, foremen, agents, local attorneys, accountants, librarians and notaries. Though, California and Texas have certain restrictions for notaries.

Your representatives must be trusted, knowledgeable, and trained on your I-9 process.

Also, you’ll want to make sure they have someone to contact for any problems, issues, or questions.

As you can see, there are some inherent, I-9 compliance risks hiring remote workers.

And know, ICE won’t stand for any excuses.


4 You must be in a ready state for TNCs

Remember, E-Verify information for Form I-9 must match up with Social Security and Homeland Security.

If it doesn’t, you’ll receive a Tentative Non-confirmation (TNC) for each employee in question.

This means the government has not confirmed the employee as eligible to work in the U.S.

Don’t worry. Here’s what to do next.

  • Do not terminate, suspend, delay training, withhold or lower pay for an employee because of the TNC.
  • Check that you entered all the employee’s data correctly.
  • If the form contains mistakes, you can terminate the query as invalid, correct the mistakes, and resubmit the query.
  • If the form is correct, print out the TNC for the employee. They will have two options: to contest or not contest the TNC.

If the employee contests the TNC

Now, the employee has their chance to contact the government to answer their questions (or supply additional documentation).

  • Have the employee sign and date the TNC
  • You do the same
  • Update E-Verify that the employee chose to contest the TNC. E-Verify will generate a referral letter. This lists instructions for contacting the government, which they must do within eight days.
  • Give the referral letter to the employee
  • Do not ask the employee for updates. Use the E-Verify system for this.

Ultimately, E-Verify will show you one of three statuses: 

  • Employment authorized
  • No Show, which turns into a…
  • Final Nonconfirmation (not authorized to work)
  • Review and update the data (meet with the employee to update, then resubmit, the I-9)


If the employee does not contest the TNC

Or, if they receive a Final Nonconfirmation, then you must terminate their employment. Otherwise, you can face fines and penalties for knowingly employing an unauthorized worker.

In either case, you must close every case in the E-Verify system.


5 Your odds for being audited increase

And being audited is not something you want to happen.


Audits are scary and stressful. Who knows what lurks deep in your records and throughout your processes. Even when doing ‘everything right’, it’s not fun to have outsiders poking around. Maybe everything will be just fine. Maybe not.

Audits eat up time. It usually takes a team of people to prepare for an audit, which is also distracting. Your company hired and is paying people to do their real job. Now you must do more for the IRS and less for the company? Which is expensive, too.

Audits cost, if you’re judged as non-compliant. Hefty financial penalties can be assessed. How much? Depends on the type of audit.

Your brand can suffer. You built and polished your brand over years, decades even. It can be a PR nightmare to lose that in a moment. If judged non-compliant, and you’re a major player in your space, the business world is sure to know. And customers, too.

What’s the best way to be prepared for an audit?

Keep proper records. This will help you justify your I-9 operations and practices. You’ll want to access these records quickly and easily. Which can be difficult with a paper-based system.

Collect and complete information right the first time. Otherwise, people are wasting time doing re-work. Again, using an automated system will help- immensely. Why have humans do such tedious, error-prone work, when computers can do this faster, cheaper, and better?

Be in the know for if and when I-9 forms were started, still in-progress, and completed. And, be able to assign follow-up activities if/as needed. Hard to do with a stack of papers.

There’s more. Read the 6 Tips to Avoid an Audit

Stress, time, and money. Your people and brand, too. All these are potential casualties if you’re judged as non-compliant.

More about ICE

ICE is making good on their claims to increase worksite enforcement by “four to five times”.

Just half way through 2018…

  • 6,848 worksites were investigated. Resulting in…
  • 5,981 I-9 audits
  • 779 criminal and 1,525 administrative arrests

This is worth repeating…

ICE plans to conduct up to 15,000 Form I-9 audits per year.

They hired more agents, invested in more technology, and contracted with more auditors and attorneys.

Read more about ICE Ramping Up I-9 Audits to Record Levels.

Again, going paperless will help you and your HR organization be ready to handle ICE like a guest. They’ll ask, you’ll provide, quickly.


Minimize your risk to these challenges

To summarize:

  • Complete all I-9 forms accurately, the first time, on time
  • Stay up to date with changing I-9 requirements, for federal and state
  • Make sure your E-Verify records matches those with Social Security and Homeland Security
  • Adjust your I-9 process as requirements change
  • Hire and train representatives for verifying remote workers
  • Know what to do if ICE or the IRS notifies you for an audit or inspection. Prepare the team, too.


Automate your I-9 verification process

Do less manually. Use (and lose) less paper. Reduce risk. Sleep better.

With CIC Plus you can

  • Coordinate I-9 verification wherever your employees live and work
  • Be compliant, at all times, with the latest regulations
  • Show and share the verification process with administrators
  • Record everything electronically, to survive and thrive an audit