Based on decisions issued by OCAHO in 2013, there are four common mistakes that employers make with the I-9 forms. The most common violation is the most basic: failure to prepare an I-9 form, especially failing to complete an I-9 Form until after being served with a Notice of Inspection (NOI) by the Immigration and Customs Enforcement (ICE).
The second most common violation is failure to ensure the proper completion of Section 1 of the I-9 Form. The responsibility for executing an error-free Form I-9 rests solely on an employer, even if Section 1 must be completed by an employee.
The most common Section 1 error relates to the employee’s legal status in the U.S. Typically, employees will:
- fail to check one of the four boxes attesting to the employee’s status;
- check off two or more of those boxes;
- check a box for permanent residence or employment authorization but fail to include an “A” number; or
- fail to sign the attestation in Section 1.
These types of violations are easily preventable simply by conducting a thorough review of Section 1 before proceeding to Section 2.
A third common I-9 error is the backdating of I-9 Forms. Backdating occurs when the form is signed and the date indicated is not the date the form was actually signed, but when the form should have been signed, days, months or even years prior. Often, this violation is committed in conjunction with the failure to complete the I-9 Forms until after the service of the NOI.
Employers also commit many errors in the completion of Section 2. These are typical Section 2 violations:
- Failure of the employer to sign the Section 2 attestation;
- Failure to indicate a List A or B/C documentation;
- Insufficient information listed in List A or B/C; and
- Improper or expired documents listed in List A or B/C.