How to correct errors on Form I-9
Employers are required to complete Form I-9 for every new hire and maintain that form for as long as the employee is active and for a certain time after the employee leaves. If the employer finds an error or omission in a form, the employer must correct it to the fullest extent possible. If a serious, uncorrected error is discovered in an Immigration and Customs Enforcement (ICE) I-9 inspection, an employer can be fined or subjected to other sanctions.
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Types of Form I-9 errors
There are three types of issues:
- Technical errors are minor errors that did not cause Form I-9 to fail in its purpose at the time it was completed, which was to verify that the new hire is authorized to work.
- Substantive errors and omissions are those that caused the I-9 to fail in its purpose at the time it was completed. Substantive errors cannot be corrected but only mitigated. (“Mitigation is explained below.)
- Recommended errors and omissions are those that, while they do not comply to the letter with Form I-9 instructions or other published guidance, an ICE inspector might not count it as an error but would instead highlight for training purposes.
How to correct Form I-9 errors
The recommended method for correcting Form I-9 is to:
- Draw a line through the incorrect information.
- Enter the correct information in the correct box or as close as possible.
- Initial and date the correction.
The above method is not required for simple notational errors made by the original writer contemporaneous with the original writing. For example, the new hire transposed a couple of numbers when writing her Social Security number. She corrected the form by overwriting the incorrect numbers with the correct information. Failure to initial and date the correction would not be an error.
However, both the employee and employer should initial and date a correction that is made after the forms is completed.
Wite-out, correction tape, and erasures
Employees and employers may not conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability in an inspection. If you have made changes on a Form I-9 using correction fluid, tape, or erasures we recommend you attach a signed and dated note to the corrected Forms I-9 explaining what happened.
Correcting multiple errors on Form I-9
To correct multiple errors in a section, you may complete the section again on the current version of Form I-9 and attach it to the old form. A new Form I-9 can be completed in total if major errors (such as entire sections being left blank or Section 2 being completed based on unacceptable documents) need to be corrected. A signed and dated note should be included in the file regarding the reason you made changes to an existing Form I-9 or completed a new Form I-9.
Who can correct Form I-9
While employers are required to maintain an accurate form, they cannot correct or update every section of Form I-9. The new hire swears to the truthfulness of the information that s/he wrote in Section 1. For this reason, only the employee may correct errors or omissions in that section.
The employer may generally correct errors and omissions in the “Preparer and/or Translator Certification;” however, the employer may not sign for the person who actually assisted the employee.
The employer may correct errors and omissions in Section 2 page header; the document descriptions; and start date. The employer may also correct issues in the “Certification” section, although the employer may not sign for the person who physically viewed identification documents while in the new hire’s presence as that person is swearing to certain aspects of the process.
The employer may correct any errors in Section 3; however, the employer may not sign for the person who physically viewed identification documents while in the employee’s presence for Section 3C (reverification of expiring work authorization).
The employer may designate anyone to correct errors or omissions that the employer is authorized to correct including a third party like an I-9 auditor. Although not expressly prohibited, the employer should not allow the employee described in Section 1 to correct issues in Section 2 or the Certification.
Correcting identification document descriptions
When an error or omission is found in the description of identification documents in Section 2 (usually a substantive error), the employer can correct and essentially eliminate the error in total if the employer has retained copies of the identification documents. The employer is authorized to write the correct information from the documents into Section 2.
If the employer has not retained copies of ID, most errors and omissions in Section 2 will be considered substantive and could result in a fine in the event of an I-9 inspection. To mitigate the error, the employer must meet with the employee again to view actual identification documents while in the employee’s physical presence.
(We strongly recommend that employers always retain copies of identification documents for this reason.)
Mitigating substantive Form I-9 errors
Because substantive errors happen at a moment in time (and you can’t go back in time) and the error caused the purpose of the form to fail, they can only be “mitigated” or “lessened” to the fullest extent possible. Mitigation is not so much a correction but an acknowledgement of the error.
Substantive errors include:
- Missing signatures. To be valid, the new hire must swear to the accuracy of the citizenship information in Section 1 by the end of the first day of work for pay. If the employee does not sign, s/he has not sworn and the purpose of Section 1 has failed. Likewise for a missing citizenship status.
- Missing signature dates. Like the signature, the failure of the employee or employer to note the date on which s/he swore to the information or viewed identification documents (Section 2) is a failure of the form that cannot be erased.
- Insufficient or unacceptable ID documents. If the employer does not view and record the minimum required documentation (one from List A -OR- a combination of one from List B and one from List C) by the end of the third day after the first day of work for pay, the purpose of Section 2 has failed.
- Overdocumentation. If the employer accepts or requires the employee to present more documentation than the minimum required (ex., one from A, one from B, AND one from C), then the employer has committed a substantive error that cannot be corrected.
How to correct substantive errors: the mitigation statement
To correct a substantive error or omission, the employer must:
- Correct the form on its face following the guidelines above to the fullest extent possible.
- Create a signed and dated statement, preferably on company letterhead, that describes the incorrect or missing information as well as the steps taken to correct the error.
- If the error can be justified or explained, explain it. (There usually is no acceptable explanation!)
While a substantive error cannot be erased, acknowledging the error and explaining the efforts to mitigate it will go toward establishing “good faith,” which is one of several mitigating factors in an ICE inspection that can reduce fines by approximately five percent.
More helpful hints
Never, ever back-date a form! Always use true dates when correcting the I-9. If a back-dated form is discovered in an ICE inspection, it will erase any efforts you made to establish “good faith” and will actually be seen as “bad faith,” which could increase fines.
When correcting errors by completing new sections or forms, always use the current version.
Want to show an ICE inspector that you take Form I-9 seriously? Hire a knowledgeable and experienced I-9 auditor to review and correct your I-9s. Having a third party correct your forms is great evidence of “good faith.”
Based in part on this USCIS article.
