Common I-9 Mistakes Employers Make with Virtual and In-Person Employees, Part 2

By Ashlyn Kahler-Rios
Caplan & Earnest

Recently, I shared some of the most common I-9 mistakes that employers make. As I shared previously, one of the most basic elements of hiring is that all U.S. employers must complete governmental form I-9 form for each employee they hire. The length or nature of the employment relationshipdoes not matter – there are no exceptions.

And although the I-9 seems like a relatively simple form, it trips up a lot of employers and leaves them at risk for audits and significant fines even if the errors are not intentional.

Building on my previous list of common errors, here are four additional mistakes that businesses make.

1. Not differentiating between Form I-9 and the USCIS’s E-Verify

Both the I-9 form and the E-Verify system deal with employment eligibility and verification; however, it is important to note that E-Verify is not an electronic equivalent of I-9. The two can be used together to validate that an employee is authorized to work in the U.S., but they cannot replace one another. Additionally, completing the I-9 form is mandatory, while for most Colorado employers using the E-Verify system is optional.

2. Failing to retain documents

Employers must keep each employee’s I-9 form and relevant documentation for one year after employment ends or three years after the date of hire, whichever is later. Failure to do so may expose you to additional fines in the event of an audit.

3. Using an outdated or improper form I-9

It is important to carefully check the I-9 version and expiration date. The I-9 form is regularly updated and many updates invalidate the use of prior versions.  Employers should confirm they have the current version with each hire (and are strongly advised not to have a “printed stash” of blank forms laying around).

4. Asking employees to complete the form I-9 prior to hire

Employers cannot ask potential employees to complete the I-9 until an offer has been made. I-9s should not be part of your application or interviewing process. The form should only be completed once an offer has been extended to the employee and the employee has accepted.

Creating an internal immigration and I-9 compliance policy will help your organization act consistently and reliably, putting you in the best possible position in the event of an unexpected Notice of Inspection from Immigration and Customs Enforcement (ICE).

If you have questions about legal issues relating to employees or employment, please give us a call at 303-443-8010 or send me an email at akahler-rios@celaw.com.