ICE Reclassifies I-9 Violations, Increasing Risk to Employers
US Immigration and Customs Enforcement (ICE) recently updated its I-9 Inspection Under Immigration and Nationality Act § 274A guidance, expanding which Form I-9 errors are considered “substantive”.
Homeland Security Investigations (HSI) is tasked with inspecting employers’ compliance with Form I-9 obligations. In response to a Notice of Inspection from HSI, employers must produce Form(s) I-9. When HSI finds technical or procedural errors, the employer has at least 10 business days to make corrections. An employer may receive a monetary fine ranging from $288 to $2,861 per substantive violation and uncorrected technical or procedural errors.
ICE’s recent guidance reassigns some technical errors to be substantive errors, increasing the risk of fines.
Here is a summary of what is currently considered substantive versus technical:
Paperwork Violations:
Substantive Violations
- Failure to timely prepare the Form I-9 and present the Form I-9 upon request.
- Completion of a Spanish-language version of the Form I-9 outside of its authorized area (Puerto Rico).
- Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer for a fee, or representative.
Section 1
Substantive Violations
- Failure to ensure that the employee completes their legal name and date of birth.
- Failure to ensure that the employee checks only one box attesting to whether the employee is a citizen, a noncitizen national, a Lawful Permanent Resident, or an alien authorized to work until a specified date.
- Failure to ensure that the employee completes the Alien Registration Number/USCIS Number field.
- Failure to ensure that the employee completes the Alien Registration Number/USCIS Number field, the Form I-94 Admission Number field, or the foreign passport number and country of issuance, and the employment authorization expiration date field required for aliens authorized to work in the United States until a specified date (Alien # or Admission #).
- Failure to ensure that the employee signs and dates the attestation portion of Section 1.
Technical Violations
- Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed.
- Failure to ensure that an individual provides his or her other last names used (if any) or a physical address in Section 1 of the Form I-9. A missing email address or phone number in Section 1 will not constitute a violation.
- Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security Number is correct.
Section 2
Substantive Violations
- Failure to timely verify and record required documents.
- Failure to mark the alternative procedure box in Section 2 if the employer used an alternative procedure authorized by DHS to examine documents, or incorrectly putting a check mark to note that an alternative procedure was authorized by DHS to examine documents
- Failure to print the complete name and title of the employer or authorized representative, and to provide the date of hire in the attestation portion of Section 2.
- Failure to sign and date the Certification portion of Section 2.
Technical Violations
- Failure to record the employee’s complete name at the top of page 2.
- Failure to provide the business name or physical business address in Section 2 of the Form I-9.
The guidance also redefines errors for Supplement A of the Form I-9, Preparer and/or Translator Certification for Section 1 and Supplement B of the Form I-9, Reverification and Rehire.
With these redefined substantive errors, it is more important than ever that employers are diligent in complying with I-9 requirements, as many formerly correctable errors are now substantive violations that could result in substantial consequences. Organizations should review their I-9 processes to ensure compliance and thoroughness.
Please do not hesitate to reach out with any questions.
