Key Points

• ICE quietly reclassified many Form I-9 errors. Without formal announcement, ICE updated its I-9 Fact Sheet to indicate previously correctable "technical" errors are now "substantive" violations.
• Employers now face additional fines. Errors that were previously correctable can now trigger fines of $288 to $2,861 per violation.
• Proactive compliance is critical. Employers should work with counsel to train staff, audit existing I-9s and ensure electronic I-9 systems are compliant before ICE comes knocking.

Did you miss it? Last month, U.S. Immigration and Customs Enforcement (ICE) quietly updated its Form I-9 Fact Sheet without any formal announcement.

This silent revision reclassifies a number of Form I-9 errors from “technical or procedural” failures to “substantive violations.” It signals an intent, from ICE, to increase enforcement against employers for errors in Form I-9 completion and compliance — even if those errors were previously correctable.

There are several types of I-9 errors that were considered “technical,” meaning that if ICE conducts an audit and catches the error, a monetary penalty would not be imposed on the employer so long as the employer corrected these errors within 10 business days of the discovery. Conversely, “substantive” errors are those for which an opportunity to correct the failures would not be given and a penalty would be immediately imposed. While the distinction still exists, the list of substantive errors has now grown to include many items that used to be simply technical.

Some of these newly substantive errors include, but are not limited to:

• Use of the Spanish-language I-9 form outside of Puerto Rico.
• Omission of date of birth in Section 1.
• Omission of the employee’s USCIS number in Section 1.
• Omission of the signature date next to the employee’s signature in Section 1 or employer’s signature in Section 2.
• Omission of the hire date in Section 2.
• Omission of the name/title of the employer representative or authorized representative in Section 2.
• Incomplete or erroneous information recorded in Section 2 in List A, B, or C.
• Failures associated with electronic I-9 software including audit trails, electronic signature protocols, etc..
• Failures in utilizing the alternative procedure for remote verification by not checking the ‘alternative procedure box’ in Section 2.

If employers do not correct errors quickly before an audit, they can be faced with fines ranging from $288 to $2,861 per I-9 violation. This per violation fine depends, in part, on the percentage of errors found in an ICE audit. If there are a significant number of errors found during the audit, the per violation penalty increases. This can lead to significant penalties.

Because the list of uncorrectable violations has increased, ICE will likely be increasing its efforts to conduct I-9 audits and catch mistakes that were once correctable. To be prepared, employers should prioritize I-9 compliance through training with counsel and proactive internal I-9 audits with counsel. Training is more important than ever to prevent substantive errors before they occur. Reliance on the systems third parties provide for completing an electronic I-9 is not a defense under the law. Thus, employers should work with counsel to ensure that any systems for electronic completion of I-9 forms are compliant and limit the potential for substantive violations as much as possible.

For more information, please contact Ali Brodie at abrodie@foxrothschild.com, Ryan W. Lee at rwlee@foxrothschild.com, or Carolyn D. Richmond at crichmond@foxrothschild.com.

This information is intended to inform firm clients and friends about legal developments, including the decisions of courts and administrative bodies. Nothing in this alert should be construed as legal advice or a legal opinion. Readers should not act upon the information contained in this alert without seeking the advice of legal counsel. Views expressed are those of the authors and not necessarily this law firm or its clients.