ICE Issues New Practice Pointers On Form I-9

by Steve Bogue

Bogue, A. Stevenson
(402) 341-3070

In a recent meeting with a committee of immigration lawyers, ICE issued “practice tips” based upon their interpretation of the requirements for using Form I-9.

The New Form: All employers must use the new Form I-9 for employees who begin work after May 7, 2013.

Optional Info: There are two optional fields in Section 1, one for the employee’s telephone number and one for the email address. The best practice is that if those fields are not filled out, the employer should insert “N/A.”

Reverifications: All reverifications for expired work authorization documents must be completed on the new Form I-9, even if Section 3 is open on the old I-9.

New Identities: All employers whose employees come forward with new identities should have them complete a new Form I-9 and, if enrolled in E-Verify, should submit a new query through that system. Obviously, this would not apply to those employers who have a uniform policy of terminating employees for paperwork falsifications, including falsifications of the Form I-9.

The Three-Day Rule: Although it is not to be found in the regulations, ICE has taken the position that the determination of the three-day period within which Section 2 should be completed depends upon the number of days the business is open, and not the days worked by the employee. Accordingly, if a business is open seven days a week, but the employee only works Monday through Friday, Saturday and Sunday are still to be counted as working days to determine compliance with the time line for the completion of Section 2. It is still a “best practice” to complete the entire Form I-9 on the employee’s first day of employment.

The New Instructions: Under the new guidelines for the Form I-9, employers are required to provide new hires with the full, expanded I-9 instructions at the time they complete Section 1. Because of the cumbersome nature of that requirement, it is recommended that employers simply have a laminated copy of the instructions available to be reviewed by the employee. It is not clear how ICE intends to enforce this particular requirement or what the penalty will be for non-compliance, if any.

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