Sigma Training

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Table of Contents

Today's topic

How to correct Form I-9 when the correction requires the employee’s cooperation. Also, how to handle a circumstance where it is suspected that fraudulent documents were presented or there is other evidence of fraud.

“Phase 2” addresses five circumstances:

  • Errors and omissions in Section 1
  • Errors in Section 2 document descriptions when copies of ID were retained at hiring;
  • Errors in Section 2 when ID documents were not copied at the time of hiring;
  • Supplement B (formerly Section 3) reverifications;
  • Potential fraudulent documents or other fraud.

Notice to the employee

ICE “best practices” recommends proactive and transparent communication with affected employees regarding the correction of their I-9. You should:

  • advise the employee that Sigma is conducting the internal audit to remain in compliance with federal immigration laws;
  • notify each affected employee privately that their I-9 contained errors, and their assistance is required to correct them;
  • explain that the audit is being conducted voluntarily and not because of a government mandate or enforcement action;
  • provide the employee with a copy of their I-9 and any related documents, and explain what errors and omissions must be corrected.

Section 1 corrections

  • Only the employee can correct errors and omissions in Section 1. The employee should line through the incorrect information; write the correct information nearby; initial and “true date” (do not back date) the correction.
  • If a significant portion of the Section 1 information (or the entire section) is missing, or if manually correcting the original form would cause more confusion, the employee can complete Section 1 again on the current version. The corrective section should be attached to the original form with a signed and dated explanation.
  • If the employee is not proficient in English, you should provide a translator to assist. When the employee corrects an error in Section 1, the translator should initial and date next to the employee’s correction; then complete the Preparer and/or Translator Certification block. 
  • The employee is not required to complete/correct Section 1 in your presence; however, you are responsible for ensuring that the correction is completed correctly:
    • Name, address, birth date, Social Security number provided?
    • Is the correct citizenship status selected? If the employee selects a different status than that on the original form, are they correcting an error or has their citizenship status changed (requiring a new form)?
    • If a lawful permanent resident (#3) or alien authorized to work (#4), did they write in the required additional information?
    • Section signed and “true” dated?

Section 2 corrections, generally

If incomplete, incorrect, or missing ID document descriptions are discovered later, they must be corrected.

If the employer copied the ID documents that the new hire presented at the time of hiring and completion of the I-9, the employer may use information from the document copies to correct Section 2 manually; no face-to-face meeting is required.

If the employer did not copy the identification documents that the new hire presented at the time of hiring and completion of the I-9, the employer must meet with the employee (if still active) to view identification documents again.

If document fraud is suspected, the employer must meet with the employee to resolve the concern.

We recommend using the current version of the I-9 for all Section 2 corrections requiring the viewing of ID documents. Write the employee’s name in Section 1 (complete no other fields) to associate the corrective page with the original form.

Reverifications

Approximately 111 forms for non-citizens across all locations contained no evidence that expiring work authorization documents were ever reverified (Error 5005), as required by the rules. Reverification requires that the employer or an authorized representative meet with the employee, face to face, to view actual documents (List A or C) to confirm the employee’s continued work eligibility.

The face to face meeting

Whether Section 2 or Supplement B is being completed for a new hire or corrected following an audit (and the original ID was not copied as described above), the employer or an authorized representative must meet with the employee, face to face, to view actual identification documents (not copies) while in the physical presence of the employee. You may not simply ask the employee to send copies of their ID to you.

Like for a new hire, the documents that you accept from the employee for the correction must be:

  • actual ID documents, not copies*;
  • from the Lists of Acceptable Documents;
  • the employee’s documents (not belonging to someone else);
  • appropriate for the employee’s citizenship status (as indicated in Section 1);
  • unexpired (as of the date the section is being completed) when the document bears an expiration date;
  • not obviously fraudulent.

The employee may present different documents from those presented at the time of hiring.

You may reject a document that does not meet the above requirements and require the employee to present a different document. If you have a question about whether or not a document is acceptable, contact us in the Teams channel; by phone at 888-933-8374 (select the ‘audits’ option); or by email to audits@verifyi9.com .

*(Certain documents, like Form I-94 which is downloadable from the US Customs and Border Protection website, can be accepted in any format.)

The employer should provide all employees who claim they are work-authorized with a reasonable amount of time to address any deficiencies associated with their Forms I-9 and should not summarily discharge employees without providing a process for resolving the discrepancy (see “Notice to the employee” above). The reasonableness of a timeframe should be determined on a case-by-case basis and could require weeks, if not months, depending on the circumstances.

Meet with the employee personally and privately.

You are not required to be a document expert and you are under no specific deadline to complete any employee’s correction. If you have a question about the validity of a document, you can accept it conditionally. Take a clear photo of both the front and back of the document (don’t use a copying machine). Advise the employee that you need to consult with your supervisor and will notify them whether or not the document has been accepted and the correction completed. Let us review the document.

  1. Notify the employee of the audit and correction (see above). Give the employee a copy of their I-9 and other documents including ID, if any.
  2. Explain what errors and omissions will need to be corrected.
  3. If an error in Section 1, you can have the employee correct the error(s) or complete a corrective section immediately, if possible. If a non-citizen (#4) needs to consult a document to complete the additional citizenship info, schedule a second meeting within a reasonable number of days. (Do not let the employee take the original I-9 with them.)
  4. If Section 2 must be corrected, give the employee the “Lists of Acceptable Documents” and advise them that they will be required to present either a document (or combo document) from List A or a combination of one document from List B and one from List C at the next meeting.
  5. Schedule another meeting with the employee in a couple of work days. Ask the employee if they have any concerns regarding the second meeting to correct their I-9. You must consider their reasonable concerns and accommodate them.

Correcting the form

How you correct Section 2 depends on several factors:

  • Whether or not legible copies were made of the ID documents that the employee presented when they were hired;
  • The extent of the error (ex., just a missing document number or the Section 2 columns already filled with overdocumentation);
  • Whether or not a new I-9 is required by rule.

Manual corrections

  • Line through the incorrect information;
  • Write the correct or missing information in the field or nearby;
  • Initial and date the correction;
  • If the purpose of the correction is not obvious on its face, add a mitigation statement.

Corrective section

If entire document descriptions are being added and the fields on the original form are filled, or if the reason for the correction will not be obvious on its face:

  • Write the employee’s name in Section 1 (complete no other fields);
  • Describe the corrective documents in Section 2 of the current version;
  • Complete the Certification section. Use “true” dates;
  • Attach the corrective page to the original form;
  • Add a mitigation statement.

Citizenship Status Change

If the employee reports that their citizenship status has changed legally and they do not admit and are not suspected of presenting fraudulent documents when hired:

  • Complete a new I-9 with the employee using the original start date;
  • Attach the new form to the original I-9;
  • Add a signed and dated statement explaining the reason for the added form.

Failure to Reverify (#5005)

  • Supplement B (the current form version) should be completed and attached to the existing I-9.
  • A signed and dated statement should be attached to acknowledge the failure and explain the reason for the late reverification.

Suspected fraudulent documents

The standard for reviewing Form I-9 documentation during an internal audit does not change from the standard applied during the initial employment eligibility verification process. An employer is required to accept original Form I-9 documentation that reasonably appears to be genuine and to relate to the individual presenting the documentation. If an employer subsequently concludes that a document does not appear to be genuine or to relate to the person who presented it, the employer should address its concern with the employee.

If we indicated that an ID document may be fraudulent, we did so based on a review of a copy or other information. You must make your own determination that a document is fraudulent or that an employee may not be authorized to work before proceeding. You may use the information that we provide as part of your own determination.

  • You must provide the employee with the opportunity to present a different document;
  • The employee may present the same document that was presented at hiring unless you have concluded that the particular document called into question by the internal audit is obviously fraudulent and may not be used again for Form I-9 purposes;
  • How much time you give an employee to present documents is based on the circumstances. An employer should consider the reasons for an employee’s inability to present acceptable documentation and determine whether an extended period of time would be appropriate based on the particular circumstances on a case-by-case basis. An employer should be sure to allow or disallow additional time based on objective nondiscriminatory and non-retaliatory criteria and without regard to an individual employee’s citizenship status or national origin. The employer should document the basis for its decision and continue to document the efforts of the employee to obtain acceptable Form I-9 documentation.
  • If the employee is able to present acceptable alternative documents, you should complete Form I-9 again and attach it to the original form.
    • If you can be reasonably assured that the employee’s identity as described in Section 1 of the original form is true, you can complete a corrective Section 2 only;
    • If the employee admits that s/he was hired under a false identity but is now work-authorized under his/her true identity, complete the full I-9 with the employee.

Final notes

  • Document all interactions and communications with the employee regarding Form I-9. Documentation should be in a format similar to a mitigation statement; signed and dated by the company rep interacting with the employee; and should be added to the I-9 and retained for as long as the form is required to be retained.
  • When you have the opportunity to view ID documents, take a clear photo of front and back with a smartphone. Do not rely on a copying machine. Photocopies are usually not legible and are practically useless when determining whether or not the document is valid.
  • During the course of this audit and correction, you may not request copies of ID documents solely because a copy is illegible or missing. You may make a copy of an ID document that has been presented to correct a deficiency in the employee’s form or because you determined that the document presented originally was not genuine.
  • If the employee quits after being contacted, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explain why corrections could not be made (e.g., because the employee no longer works for the employer).
  • Your dashboard view will be updated (hopefully, later today) to “flag” the employees whose forms should be corrected via the viewing of ID. The flagged forms will not necessarily be all forms that will require a face-to-face meeting to correct; nor does a flag necessarily indicate that a potentially fraudulent document was presented. The flags should help you focus on the situations that likely require extra attention.

Required reading

Suggested reading