Frequently Asked Questions on the New Form I-9!

The following are frequently asked questions presented during the HR Best Practices webinar on the new Form I-9. Please feel free to reach out if you have any more questions.

WHAT IF YOU ARE A SUPER‐SMALL COMPANY (5 EE'S) AND HAVEN'T BEEN DOING I‐9'S? CAN I DO THEM NOW AND BACK DATE THEM?

Response: It’s not a good idea. Do them now, certainly. Back‐dating them will likely be discovered in an audit. You could then expect the penalties to escalate along with the government’s anger over the situation. As a small company you have a better chance of getting a slap on the wrist if you show good faith compliance.

CAN AN EMPLOYEE BE PLACED ON LEAVE IF HE/SHE HAS NOT RECEIVED THE EMPLOYMENT AUTHORIZATION DOCUMENT BY THE 90TH DAY?

Response: Leave or terminated is fine. Either way the employee has not indicated their authorization to work legally in the U.S. and it would not be advisable to let them do so in such a situation.

MUST YOU USE A DIFFERENT COLOR INK WHEN MAKING CORRECTIONS BEFORE OR AFTER AN INTERNAL/EXTERNAL AUDIT? IS IT DIFFERENT IF YOU CATCH THE MISTAKE AT THE ONSET OF FILLING OUT THE I‐9?

Response: You don’t need to, but it is a best practice. Yes, if you catch it at the on‐set it’s not so much a correction as it is completing the form. In the latter situation you wouldn’t need to initial and date any changes.

WHAT IS THE LEGAL AND PROPER WAY TO STORE THE COMPLETED FORMS? ON A SEPARATE FILE? OR WITH EMPLOYEE HR FILE?

Response: Best practice is in its own separate I‐9 file and not embedded within the personnel file.

WHAT DO YOU DO IF YOU HAVE AN EMPLOYEE THAT DOESN'T HAVE AN I‐9 ON FILE FROM WHEN THEY WERE HIRED 10 YEARS AGO?

Response: Do one today and hope you don’t get audited.

 
 
Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.
Form I-9Kevin Mosherform i-9, faq