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Oct 25, 2017

Form Over Matter Matters and Other ICE Details


Category: Employment

As of September 18, 2017, employers needed to start using the latest version of the Form I-9, Employment Eligibility Verification. Employers can visit https://www.uscis.gov/i-9 to get the most updated information on the new I-9. One reason the forms change and get new dates is so that Immigration Services can check dates the forms are filled out against the dates on the form but . . . it sure is hard to keep up with all these changes, in just one of many aspects of having employees. In any case, the forms you use now should have this date on the lower left corner:

  

In the upper right hand corner, the form should have this:

  

Your employees who have already filled out a Form I-9 are not required to complete the new version. However, as you prepare to have new employees fill out the most current Form I-9, you might take this opportunity to refresh your company's familiarity with the I-9 process. The U.S. Citizenship & Immigration Services "Handbook for Employers" (available here: https://formi9.com/pdf/FAQ.pdf) provides helpful guidance and "FAQs" about the verification process, valid documents, completing and retaining the Form I-9, avoiding discrimination, and more.

Location and retention of forms

The forms should be kept somewhere that is secure, given the data on them. Supervisors should not have access to them. The most practical place to put the forms is in a secure binder where you can easily get all of them should you ever be audited.

You are required to hold on to the I-9 forms for one year from date of termination, or three years from date of hire, whichever is later. Document date of hire and termination and put that with the form so it is right there, easy to check. You should get rid of the forms after that time period because, if audited, ICE can look at those old forms too for mistakes.

Physically filling out the forms

Anyone can act as the employer's agent in terms of overseeing the employee fill out the I-9 form and provide the needed identification. This issue comes up for employers with employees who are working in other states than where human resources is. But they must physically inspect the employee's documents; that cannot be done electronically, for example, by Skype. The downside for employers is that the employer is still responsible for the form being filled out correctly. The employer is still responsible also for whether the documents presented are sufficient, including whether they are expired. If you are an employer using agents to complete I-9 forms in other locations, it is good practice, though not required, to document the engagement of that agent, and what they are expected to do and how. For more details, see: https://www.uscis.gov/i-9-central/i-9-central-questions-answers/faq/i-hire-my-employees-remotely-how-do-i-complete-form-i-9 

Who is responsible for what on the form

Section 1 is to be filled out ONLY by the employee. The employer should not "touch" page one of the I-9 form. If there is some technical error made on page one, the employee should make the change and initial and date it. If the employee is no longer employed, the employer should make the change and initial and date it. Don't forget to have the employee sign and date Section 1 on the date they complete that section. Quick question? The on-line information is actually pretty down-to-earth: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/completing-section-1-employee-information-and-attestation

Section 2 is for the employer only. Remember to put the employee's name at the top of page two. This is often forgotten. Avoid abbreviations. Put n/a in any box that is not applicable. Use the address for the worksite where the employee will be at most. If an employee's name changes, the I-9 does not need to be re-done but Section 3 can be used to update. You must use physical addresses, not P.O. boxes. Make sure to check off if a translator was used or not; a translator may be needed even if literacy not language is the issue. Dates need to follow the format on the form; so, if it says MM/DD/YYYY, write in 09/03/2017, not 9/3/17. Make sure to enter the document title, issuing authority, number(s) and expiration date (if any) from the original document(s) your employee presents:

If an error is made, cross out the error, write in the correct answer in red, and initial it. If the error is on the employee's page (Section 1), have the employee make the correction, in red, and initial it. For more information, see: https://www.uscis.gov/i-9-central/complete-correct-form-i-9/correcting-form-i-9 

For more information and "FAQs," we encourage you to visit https://www.uscis.gov/i-9-central/i-9-central-questions-answers/questions-and-answers for "I-9 Central" Questions and Answers.

 


 

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Bryan Dench, Amy Dieterich, Jordan Payne Hay, and Rebecca Webber are employment and labor law attorneys; others at the firm handle business and other matters.  You can contact us at 207.784.3200.  Skelton Taintor & Abbott is a full service law firm providing legal services to individuals , companies, and municipalities throughout Maine.  It has been in operation since its founding in 1853.