Correcting I-9 Deficiencies

Wednesday, January 19th, 2011

With the start of the New Year, many employers in the business community are hoping Immigration and Customs Enforcement (ICE) will make it their resolution to create national uniformity on the preferred way to correct I-9 deficiencies.

The issue of correcting I-9s comes up in two situations: in the course of an employer self audit and during an employer’s attempt to correct technical I-9 deficiencies after receipt from ICE of a Notice of Technical Deficiencies.  In the course of self audits, employers may discover errors on their I-9 employer eligibility forms and seek to correct those errors to bring themselves into compliance to the fullest extent possible.  Unfortunately, current ICE field guidance is lacking and there is a divergence of opinions among the auditors in different geographic areas regarding how to correct deficient I-9s.

The formal guidance that currently exists is quite bare and unhelpful in terms of providing practical guidance.  For example, employers are told that to be deemed to have properly corrected a technical or procedural failure identified in Section 1 of Form I-9, the employer must ensure that the individual, preparer and/or translator, corrects the failure on the Form I-9, initials the correction, and dates the correction.  Similarly, to be deemed to have properly corrected a technical or procedural failure identified in Sections 2 or 3 of Form I-9, the employer must correct the failure on the form I-9, and then initial and date the correction.

With that bare-bones guidance, ICE has left a number of scenarios open to the discretion of the auditor in such a way as to be unpredictable and thus unaccommodating to an employer seeking to bring themselves into compliance pre-Notice of Inspection.  For example, in dating the correction, which date should be inserted where there is a missing date of execution? One ICE auditor in Mobile, Alabama suggests that the date that it should have been done be inserted (which raises concerns of the appearance of “backdating” to an employer), then initialed and the date of the correction inserted.  An alternate method is simply to put the correction date, initial and note in the margin, “per audit.”  Since time of correction of a technical deficiency is important i.e. pre-notice of inspection reflects on good faith, it would be helpful if ICE officially sanction a manner of correction.  Moreover, for employers with multiple offices in multiple regions, it would be problematic to have an auditor prefer on way in contradiction to another auditor’s preference in a different region.  The employer needs uniformity and guidance on a national level.  There are various other examples of ICE agency guidance that is simply lacking.  In a self audit, must all Section 1 failures be performed by the employee?  Excluding the attestation, the signature and the date, can other missing or incorrect information be supplied by the employer, signed and dated?  If the employer is using an outside law firm or third-party auditor to assist with corrections, may the outside auditor make required corrections in Section 1 on behalf of the employee?  What if the social security number is missing; though it is noted as optional is it harmless to supplement or not supplement the information on the I-9 at any given point after the signature onto the I-9?  How should an employee who has checked the wrong attestation box correct this section, e.g. the employee checks that he is a permanent resident when he is an alien authorized to work?  How should an employee who has provided his birth date in lieu of the date the I-9 was executed correct the I-9?  How should omissions to the attestation information, such as incomplete numbers or no expiration dates for the alien authorized to work temporarily, be corrected?  How should an I-9 form be corrected where it appears that section one was completed by a preparer or translator but the preparer/translator box was not completed?  What is the proper way to mark up the corrections?  What if an employee fails to provide a legible signature, or prints their name rather than writing it in cursive, or fails to print their name after the signature?  Some employees are only able to provide an “X” mark and have consistently signed employment related documents with an “X.” Indeed, some auditors have listed this as a substantive violation when the employee prints his/her name rather than writes it in cursive. What if the employee signs and dates above the attestation box?

As we look for the opinion of ICE as to whether they agree or disagree on various ways to correct errors discovered on Form I-9s or receive an alternate ICE endorsed way to correct the I-9s, ICE takes the position that the most important issue is whether or not the employer’s actions are reasonable.  To assess whether an employer acted reasonably, any corrections need to make clear both what happened and when. The contemporaneous notes and information on the I-9 need to show that the employer has acted reasonably. If an employer makes a correction during an internal audit, then that should be indicated on the corrected I-9.  Their position is that they cannot attempt to quantify corrections procedures because there are too many possibilities – they believe there is an infinite number of possible errors that can be made on the I-9 form.

Unfortunately, ICE auditors conduct inspections differently, including the advice ICE auditors provide to employers concerning the same type of corrections. Especially for employers who do business in multiple locations and across the country, this presents difficult compliance issues. ICE has hundreds of personnel across the U.S. doing inspections — some have experience and some do not.  ICE believes firmly that there must be discretion and leeway at the inspections level and ICE headquarters has faith in their inspectors and auditors that they will be reasonable. (Many of their auditors are number crunchers with either a CPA or accounting training and are very exacting).  Yet, because the government’s interest in encouraging employers to correct mistakes is considerable, educating employers on how to make those corrections and providing continuity on how ICE is to request them is of great importance.  For the sake of transparency and compliance itself, I hope that ICE will consider releasing a redacted version of their internal Officer Inspection Guide, which might help employers better understand how ICE is reviewing I-9 completion and shed light on how ICE is requesting that corrections be made.  Until then, if an ICE auditor provides instructions for corrections, the employer should ask for that instruction in writing and then note on the corrected I-9 that the actions were taken pursuant to ICE auditor instructions.

The importance of predictability and advanced notice of the preferred method of correcting deficiencies cannot be understated.  Although ICE gives an opportunity to correct technical violations, “good faith” by an employer is viewed differently when corrections are made post-Notice of Inspection – ICE is tougher on those.  Moreover, the only violations that the employer might be offered an opportunity to correct by ICE post-Notice of Inspection are technical ones and substantive violations concerning timeliness may not be correctable when untimely – thus time is truly of the essence.  Take for example I-9 Section 1 corrections being made by anyone other than the employee. This can become a case involving fraud if the employee states that he or she had no knowledge of the information inserted on the I-9.  Indeed, unauthorized corrections could lead to perjury charges.  However, if an employee provided authorization for the correction, and such authorization could be documented and attached to the I-9, then, it is more likely this could be acceptable by ICE depending further on the totality of the circumstances.   Getting right technical corrections is critical and so is getting it done in a timely manner.

Ultimately the judge determines what correction approaches are reasonable and the employer’s actions are key in that regard.  However, what ICE believes is reasonable matters to employers and the absence of predictability makes compliance feel more like a cat-and-mouse game rather than a transparent process of getting it right. 

So rather than the attitude that we will let a judge determine what correction approaches are reasonable, this New Year, let’s hope ICE takes steps to establish standards and best practices to communicate to employers on I-9 corrections as well as to its staff.  Completion of Form I-9 is required of all employers.  The Department of Homeland Security (DHS) just released the January 5, 2011 edition of the M-274, Handbook for Employers, Instructions for Completing Form I-9 Employment Eligibility Verification Form.  ICE should further consider issuing and updating FAQs on their website on the subject of corrections since there can be nuances along the way based on any given circumstance.  Finally, ICE perhaps could share a redacted version of their auditor manual or participate in supporting webinars that could be available for employers.

A judge’s past determination as to reasonableness can provide good guidance for employers seeking to make corrections to I-9 deficiencies – experienced attorneys can help employers implement best practices based on those determinations and communications with ICE on the subject.

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