New York Lawyer's Legal Updates

I-9 Compliance For Employers

Author: Alena Shautsova

I-9 compliance is a necessity nowadays, and if you do not know what I-9 means you should at least read this article: I-9 Audit. Today’s article will be focused on internal audit that employers should conduct to avoid penalties for missed compliance. It is important to remember that employers cannot discriminate against employees based on the basis for their employment eligibility and cannot establish restrictions as to how an employee may prove his/her employment eligibility. Having said that, it means, that even an internal audit has to comply with these anti-discriminatory provisions.

An internal audit helps an employer to correct defects in I-9 forms and make sure that the employment force is within the compliance regulations. For I-9 consists of several parts some of which are filled out by an employee. As such, an employer cannot correct information authored by an employee, and has to ask an employee to make corrections. Each corrects has to be initialed and dated. If a translator is used, that person has to initial the correction/omission as well. In addition, the prepare/translator has to complete the certification block of the form.

If an employee is no longer with the company, the employer has to attach an explanation regarding this with the corrections. The employer who is correcting section 2 cannot use the white out or concealer. IF there are multiple errors that need to be corrected, an employer should use a new form I-9 and attach it to the old one.

In case an employer discovers I-9 that was not completed, it has to be completed as soon as possible, but cannot be back dated.

Further, for those employers who are also E-verify participants: those participants that accidentally did not create a case for a hired employee can create a new case in the system. However, if the employer did not create cases as a practice, the employer cannot go back and start creating cases unless it is a federal contractor.

As a reminder, an employer may use an outside auditor to conduct I-9 audit. As the regulations pertaining to I-9 compliance are complicated and constantly changing, the employer should establish a policy for a regular internal audit procedure.

06 January 2016
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