How Not to Get ICE’d by I-9 Forms

It is past the middle of January, the snow has finally come, and you’re loving the skiing, sledding, and ice fishing.  Then, like the rude awakening of a January thaw, you look at your company’s I-9 form and gasp, this pain in my rear form expires in March 2016!  This is what you are looking at on the form:

The gasp is so audible that ICE hears you and reminds you that they are coming out with a new form soon.  This is good news since your company will incur serious penalties if it is caught using an out-of-date I-9 form.

You have a new employee though who needs to be brought on board in the meantime but is located in another state, working for your company there.  That new applicant asks to meet by Skype to do the I-9 form.  All you need to do is watch by Skype as the applicant shows you their identification and fills out Section 1 and signs it.  But you, having gone to the most recent Central Maine Human Resources Association meeting, say, no, we have to meet in person.  This cannot be done electronically.  You sleep well that night, knowing you have followed the law.

Your new applicant arrives to fill out the paperwork and you see him write his PO Box down as his address.  You calmly inform him that a PO Box is not appropriate and that he needs to write instead the physical location of where he lives.  Having now witnessed that faux pas, you watch him like an eagle.  You, as eagles do, make sure he checks off an attestation box and signs and dates it as well.  You are well aware that this is a common oversight by employers and plan not to be part of that statistic.

In section 2 of the form, the section for the employer to fill out, you avoid yet another common error of failing to write out the employee’s name.  Seems simple but the box for this is easy to overlook.  Form over substance?  Definitely.  But it’s an I-9 form and you don’t want to have any hassles if ever audited.  You write in the applicant’s name and proceed to the portion that asks for certain identification.  You remember to make a copy of the documents used to establish citizenship and you clip them to the I-9 form.

It’s a year later now and you realize that, in your reckless youth of the previous year, you made a mistake on section 2 of this I-9 and that the employee failed to put their physical address as opposed to their PO Box.  You feel good that a self-audit caught this mistake but you are irritated that you can’t just white things out and re-write them.  Oh, no, that would too efficient.  No, instead you have to meet with that employee again and have him personally cross out the wrong address in red ink and write in the physical address in red ink and then initial it and date it.  After he does that, you fix your error in section 2, also in red ink, and you also initial and date it.  Because you have been a long standing member of your local SHRM group, you know that it is a best practice to do a memo to the file that you performed a self-audit, had the errors fixed on the date you did, met with the employee in person, and got everything initialed and dated as required.

You are exhausted.  But rather than join your friends at the Blue Goose Tavern to end the day, you do some digging and discover that ICE has come out with guidance on auditing I-9 forms and fixing mistakes.  And it is actually written in a sort of understandable way.  You learn, for example, that:

  • Only employees should correct errors or omissions in Section 1 of the form.  Only employers should correct errors or omissions in Sections 2 and 3.
  • Corrections should be made by drawing a line through the incorrect information, entering the corrected or omitted data, and initialing and dating the correction.
  • Employers should complete a new I-9 as soon as possible if an employee’s form was never completed or is missing.  The form should not be backdated, but should state the actual date employment began in the certification portion of Section 2.  A signed and dated explanation of the corrective action should be attached to the I-9 form.
  • If an employee is no longer working at your organization but there is a mistake on that employee’s I-9, employers should attach a signed and dated statement identifying any errors or omissions and explaining why corrections could not be made on the section that only the employee can handle.
  • Employers should not conceal any changes made on the form-for example, by erasing text or using correction fluid.

Your friends text you and ask where you are.  You text back and type:  You are there, at that internet site from ICE, reading their glorious guidance.  And, for a brief* moment, all seems right in the world of employment law and human resources….  [*emphasis on brief]

This article is not legal advice but should be considered as general guidance in the area of employment and corporate law.  Rebecca Webber is an employment attorney; others at the firm handle business and other matters. You can contact us at 784-3200 (telephone).  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.