Auditing Your I-9s: No Match Letter and What to Look For

• July 07, 2014
• by Laura J. Hazen
• Business Tips

Author's Note: We have developed this outline to provide general information; however, some of the information outlined may need to be tailored to the specific circumstances of each position. Thus, this should not be used as a substitute for advice of competent counsel.

Senior Policy Analyst Michele Wilson of the Immigration Policy Center (IPC) stated, "The newly announced guidelines will focus on criminal prosecution of employers who knowingly hire unauthorized workers . . . The new guidelines emphasize investigating and criminally prosecuting abusive employers thereby honing in on one of the root causes of undocumented immigration."

While many are calling for additional reform to the immigration system - on a family immigration level as well as calling for guidance for employers - we must live with the regulations we have today. What does that mean? Well, I am advising employers to do two things: conduct a proactive audit of your I-9 forms, and jump quickly when you receive a no-match letter.

I-9s

Assign a task force to review your I-9 forms and confirm that they are completed according to the regulations. Are you using the current form? (It's found at: http://www.uscis.gov/files/form/i-9.pdf). Are they organized and kept apart from other documents? Are they completed appropriately (fines for administrative violations, even for small mistakes, add up quickly)? Do you have an audit plan, if ICE asks to see records? Do you have a document retention / destruction plan? Do you ask appropriate interview questions? Educating yourself in advance is a must in this area. Know your rights and obligations and avoid confusion and chaos (and allegations of non-compliance, as fear can lead even the most compliant employers to run afoul of the regulations).

No Match Letter

In some ways, it may be inevitable. Someday you are likely to receive a no match letter. Whether it is because your employee is a John Jones, Jr. and his records are mixed up with another or because you have inadvertently hired an employee with false paperwork, you may someday hear from Immigration and Customs Enforcement (ICE).

As the ICE website explains: "Every year, the Social Security Administration (SSA) informs thousands of employers via a "no-match" letter that certain employees' names and corresponding Social Security numbers provided on Forms W-2 do not match SSA's records. Out of approximately 250 million wage reports the SSA receives each year, as many as four percent belong to employees whose names and corresponding Social Security numbers do not match SSA's records."

What to Look For During an I-9 Audit

What should you look for during your audit? The following is a list of common technical mistakes:

1. Use of the Spanish version of the Form I-9 except in Puerto Rico
2. Failure to use current version of Form I-9 at the time of hire
3. Employee's maiden name, address or birth date missing in Section 1
4. We have developed this outline to provide general information; however, some of the information outlined below may need to be tailored to the specific circumstances of each position. Thus, this should not be used as a substitute for advice of competent counsel.
5. No alien registration number next to the phrase in Section 1, "A Lawful Permanent Resident" where the number is in Sections 2 or 3 of the Form I-9 (or on a document retained with the Form I-9 and presented at the Form I-9 inspection)
6. No alien registration number or admission number next to the phrase in Section 1, "An alien authorized to work until" where the number is in Sections 2 or 3 of the Form I-9 (or on a document retained with the Form I-9 and presented at the Form I-9 inspection)
7. Employee attestation date missing in Section 1
8. Employee attestation not completed at the time of hire in Section 1
9. Name, address or signature of the preparer and/or translator missing in Section 1
10. No date in the preparer and/or translator certification box in Section 1
11. No document identification number of a List A, B or C document in Section 2 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection
12. No document expiration date of a List A, B or C document where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection
13. Failure to state "Individual under age 18" in Column B, for employees under the age of 18 that used only List C documents
14. Failure to state "Special Placement" in Column B, for employees with a disability using only a List C document
15. Business name or address missing in Section 2
16. Date employment begins missing in Section 2
17. Employer's or authorized representative's title missing in Section 2
18. No employer attestation date in Section 2
19. Employer attestation in Section 2 not completed within 3 business days of hire. If the employee is hired for 3 business days or less, at the time of hire
20. Employment Authorization Documentation in Section 2, failed to use document number (effective 2/2/2009)
21. No document identification number of a List A, B or C document in Section 3 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection
22. No document expiration date of a List A, B or C document in Section 3 where a copy of document(s) is retained with the Form I-9 and presented at the Form I-9 inspection
23. Date of rehire missing in Section 3, if applicable
24. New name missing in Section 3, if applicable

About the Author:

Laura J. Hazen is a co-founder of the law firm of H&K Law, LLC. In her employment practice, Hazen provides day-to-day advice and coaching to public and private companies on various employment matters. She also has an active litigation practice where she concentrates on representing business in all aspects of complex business and employment disputes. You can contact her by email at [email protected] or by phone at 303-749-0649.

Author's Note: This article is intended as a general discussion and information on the topic covered, and is not to be construed as rendering legal advice. If legal advice is needed, you should consult an attorney. This article may not be reprinted or reproduced in any manner without prior written permission of the author.

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