ICE Changes Policy On Form I-9 Violations

U.S. Immigration and Customs Enforcement (ICE) recently changed its policies concerning Form I-9 compliance and violations. These changes include reclassifying several administrative Form I-9 errors as “substantive” violations. As a result, formerly correctable technical or procedural errors are now subjecting employers to monetary penalties after a Form I-9 inspection. The changes are detailed in the updated Form I-9 inspection fact sheet that ICE has posted online.

Since 1996, ICE has divided Form I-9 violations into two categories: 

• Substantive violations that could lead an employer to hire an unauthorized worker; and 
• Technical or procedural violations for easily correctable administrative or clerical mistakes.

If ICE identifies a technical error during an audit, it must provide the employer with at least ten business days to correct the error before it can fine the employer. When the employer commits only a correctable procedural error and acts in good faith, ICE will not assess a fine. In contrast, substantive violations can result in immediate monetary fines. 

However, under the recent revisions, what were previously technical errors have now become substantive violations. The technical violations now reclassified as substantive violations include the following: 

• Missing date of birth;
• Missing date of hire;
• Incorrect use of the Spanish-language I-9 Form (outside of Puerto Rico);
• Preparer/translator information errors (complete name, address, signature, and date);
• Missing title of the employer or authorized representative;
• Failure to date section 1 or 2; and
• Failure to enter the rehire date.

Other errors newly classified as substantive violations relate to the 2023 remote verification process. These violations include:

• Failing to check the alternative procedure box in Section 2 or Supplement B, indicating that remote inspection was used; and
• Failing to be an active E-Verify participant at the time the alternative procedure was used.

While many employers now use electronic Form I-9 software to avoid errors, ICE’s updated guidelines indicate that simple digitization of the form is insufficient. If an electronic system’s features fail to meet specific standards, ICE may find that the employer has committed substantive violations.

The updated ICE guidelines mandate that employers conduct routine I-9 audits, review their I-9 procedures, evaluate their electronic Form I-9 systems for full compliance, and ensure that all relevant staff (i.e., HR professionals, managers, and recruiters) receive enhanced Form I-9 completion training. 

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