Form I-9 Compliance Alert: ICE Guidance Reclassifies Errors and Elevates Employer Risk

U.S. Immigration and Customs Enforcement (ICE) reclassified several common technical or procedural deficiencies as “substantive” violations making errors that may once have been considered correctable clerical mistakes can now expose employers to immediate monetary penalties upon inspection.

Due to the continuing trend of increased worksite enforcement, and the added cost for violations, employers should work with PLG counsel to conduct internal I-9 audits on an annual basis, train HR personnel on clear onboarding procedures, and maintain organized records and electronic systems compliance.

ICE Enforcement of I-9 Violations

Under the Immigration Reform and Control Act (IRCA) enacted in November 1986, all employers must verify the identity and employment eligibility of individuals hired in the United States by completing Form I-9. Employers must maintain original Forms I-9 for current employees on paper or in an electronic format capable of producing legible paper copies. For former employees, Forms I-9 must be retained for at least three years from the first day of employment or one year from the date employment ends, whichever is longer. If employers do not comply or incorrectly complete the Form I-9, they become subject to fines that can add up to potentially hundreds of thousands of dollars.

ICE enforces the Form I-9 requirement with administrative inspections, initiated by serving a Notice of Inspection (NOI) on the employer. Employers must produce the requested Forms I-9 and various employment-related documentation within at least three business days.  

Under the INA and prior ICE guidance, Form I-9 paperwork violations fall into two categories:

• Technical or procedural violations for administrative or clerical mistakes that could be easily corrected (such as missing dates or incomplete fields); and
• Substantive violations that could lead to hiring an unauthorized worker, resulting in monetary fines.

When technical or procedural failures are identified, employers receive at least 10 business days to make corrections. Uncorrected technical or procedural failures become substantive violations after this correction period expires, for which fines may be imposed.

Errors Reclassified as Substantive Violations - No Correction Period

Pursuant to ICE’s new guidance, only technical or procedural errors qualify for a correction period, while substantive violations do not.  This means that errors that are now reclassified as substantive violations of Form I-9 requirements are no longer subject to a correction period, increasing the likelihood of immediate civil penalties if deficiencies are identified during an audit.

Examples of common errors that were previously classified as technical but are now substantive include:

• Missing date of birth (Section 1)
• Incomplete or missing employee name (Section 1)
• Failure to complete required Section 1 fields or attestation (including date of employee’s signature)
• Missing first day of employment / date of hire (Section 2)
• Missing document title, issuing authority, number, or expiration date (Section 2)
• Missing name or title of employer representative
• Improper use of Spanish-language Form I-9 (outside Puerto Rico)
• Incomplete preparer or translator information (Supplement A)
• Electronic I-9 system deficiencies (e., audit trails, and electronic signatures)
• Failure to check the alternative procedure box if utilizing remote verification (Section 2 or Supplement B)

Other substantive violations continue to include:

• Failure to prepare or retain a Form I-9
• Missing employee signature (Section 1)
• Missing citizenship/immigration status attestation (Section 1)
• Failure to complete Section 1 timely
• Missing employer signature (Section 2)
• Missing employer certification date (Section 2)
• Failure to complete Section 2 timely
• Failure to examine documents
• Failure to complete Section 3 (reverification/rehire) when required
• Failure to reverify work authorization
• Accepting improper or invalid documents
• Knowingly accepting fraudulent documents
• Failure to present I-9s during inspection

Technical or Procedural Failures

Technical failures are correctable within the 10-day period before penalties may be imposed, and include:

• Using a Form version that was not current at the time of completion
• Missing “other last names used” or physical address in Section 1 (a missing email address or phone number in Section 1 will not constitute a violation at all)
• Missing employee name at the top of the page 2, Supplement A, or Supplement B
• Missing business name or physical address in Section 2
• Incorrect Social Security Number when the employer is enrolled in and utilizing E-Verify for the employee 
• Failure to record the employee’s new name (if applicable) in the appropriate section of Supplement B during reverification.

Civil Penalties

Currently, civil penalties/fines range from $288 to $2,861 per violation. (Civil penalty amounts are subject to annual inflation adjustments). Because ICE assesses fines per form and per violation, for employers with a large workforce, the cumulative exposure could be substantial.

Employers found to have knowingly hired or continued to employ unauthorized workers must immediately cease the unlawful activity—no exceptions. Such employers face civil fines, potential criminal prosecution, and possible debarment from federal contracts.

Once the base fine amount is determined, ICE will consider five statutory factors - size of the business, good faith of the employer, seriousness of the violation(s), involvement of unauthorized alien(s), and history of previous violation(s) - to determine the total civil penalty fine amount for the substantive violations/uncorrected technical or procedural failures by the employer.

Key Takeaways & Action Items for Employers

The new substantive violations may result in much higher financial exposure for employers now that ICE has reclassified common technical or administrative errors as substantive violations. Without an opportunity to cure, mistakes like these will increase fines. Therefore, early detection and correction before ICE issues an NOI will help reduce potential company liability.  Additionally, early corrections performed by annual internal self-audits, trainings of HR personnel on clear onboarding procedures, and maintaining organized records and electronic systems compliance can further reduce liability as “mitigating factors.”  Early resolution is also recommended to help address substantive violations, including knowingly hire violations and/or continuing to employ violations.

PLG therefore recommends that employers take the following actions:

1. Conduct internal I-9 audits on an annual basis to identify and correct errors before an ICE inspection. PLG’s immigration team is available to assist.
2. Establish clear procedures for onboarding and timely I-9 completion of Section 1 (by the employee on or before the first day of employment) and Section 2 (within three business days of hire).
3. Train or retrain HR personnel on acceptable documents and proper verification procedures, as well as proper completion requirements of Sections 1 and 2 and Supplement B.
4. Maintain organized records to ensure Forms I-9 and supporting documentation can be produced within the required timeframes. Avoid reliance on copies of documentation to cure missing data on Forms I-9, as such errors are no longer considered technical errors.
5. Ensure full compliance of any electronic I-9 systems with federal regulatory requirements, including electronic signature standards, audit trails, indexing, etc.
6. Respond promptly to any NOI and use the 10-day correction period for technical failures.

Please contact Lori Geisinger and Peter Asaad of PLG’s Immigration Team with any questions regarding I-9 compliance or ICE worksite enforcement.