Compliance Tip of the Week
With Brian Elfrink and Gordon Middleton
I-9 Compliance Tips
For more I-9 compliance related tips, click and drag each tip to the left.
“ICE has once again extended the flexible guidelines pertaining to the physical presence of employees during the I-9 process. Employers may now continue to make use of remote processes for Section 2 verification until May 31, 2021. (The official ICE announcement may be found at https://www.ice.gov/news/releases/ice-announces-extension-new-employee-guidance-i-9-compliance-flexibility)
In addition to the extension, ICE also provided new guidance regarding employees working remotely under COVID guidelines, stating that employees hired on or after April 1, 2021 are exempt from the in-person verification requirement “until they undertake non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements is terminated, whichever is earlier.” (These guidelines and the original March 2020 announcement may be found at https://www.ice.gov/news/releases/dhs-announces-flexibility-requirements-related-form-i-9-compliance)
CIC+ will continue to monitor ICE guidelines relating to this topic and provide information on an ongoing basis.”
April 2, 2021
ICE Flexible Guidelines
“On occasion an employee with a completed I-9 may notify their employer that they used a false identity on a previously completed I-9, but indicates they are currently authorized to work. In such an instance, the employer should complete a new I-9, write the original hire date in Section 2, attach the former I-9 and provide an explanatory memo. The employer is under no obligation to terminate the employee.”
March 3, 2021
I-9 False Identity
“Many employers struggle to complete I-9s in a timely manner. This is a non-correctable, or “substantive” error which is subject to a fine. Employers who struggle with timeliness should consider completing the entire I-9 prior to the first day of work for pay. Once an offer and acceptance has occurred, the employer may complete the I-9 in its entirety. Employers who use E-Verify should keep in mind that an E-Verify case may only be created up to 90 days prior to the employee’s first day of work for pay.”
February 24, 2021
I-9 Substantive Errors
“There are two types of errors that can occur with Form I-9: Technical and Substantive. Technical errors are correctable, and the employer is given 10 business days to correct forms with these errors. Substantive errors are not correctible and are subject to fine.
Examples of Technical Errors include things like failure to include other names used, not supplying N/As where required, and not providing the employer representative’s title in Section 2, among numerous other items. These are not generally hard to correct, but the problem is they are usually so numerous the employer can not correct them in the allotted timeframe. Those that remain uncorrected move to Substantive Errors at the end of the 10 day period and are subject to fine.
Examples are Substantive Errors include failure to timely complete the I-9 in a timely fashion, missing I-9s, missing signatures, and incorrect documentation, among other items. Again, Substantive Errors are not correctible.”
Feb 17, 2021
I-9 Error Types
“An Immigration and Customs Enforcement (ICE) “Notice of Inspection” or NOI, typically gives an employer 72 hours to collect and submit the information requested. ICE generally asks for I-9s for either all active employees at a location, or I-9s for employees covering a specified date range.
What many employers don’t know is that even if they have completed I-9s for an individual, if that individual never started work for pay, the employer is under no obligation to produce that I-9, since the individual was never an actual employee and would not show up on payroll records.”