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Without public announcement, U.S. Immigration and Customs Enforcement (“ICE”) has announced a stricter position in how it will evaluate Form I-9 errors. ICE issued a revised I-9 fact sheet outlining its new position.
In the past, certain errors were classified as “technical” violations, and employers had 10 days to correct them before penalties were imposed. ICE has reclassified a significant number of these technical errors as substantive violations, meaning employers are subject to immediate fines with no opportunity to cure.
By way of example, the following are newly classified as substantive violations:
- Missing employee date of birth (Section 1 on I-9 form)
- Missing Alien Registration or USCIS number (Section 1 on I-9 form)
- Missing date next to employee signature (Section 1 on I-9 form)
- Missing name/title of employer representative (Section 2 on I-9 form)
- Missing date of hire (Section 2 on I-9 form)
- Procedural errors in the remote document inspection process
- Failure to meet particular requirements for electronic I-9 systems
At the same time, ICE identified new examples of technical errors, including failing to include the employer’s business address in Section 2 or not ensuring the employee lists other last names used.
ICE has made clear that retaining copies of documents copied is not a safeguard for employers and does not cure missing or incomplete information on the Form I-9, as that is now included as a substantive violation.
Because penalties are assessed on a per-violation basis, even a small number of errors can quickly result in significant fines. With more violations now categorized as substantive, employer exposure has increased considerably.
Employers should proactively audit their Form I-9 records and compliance processes in light of this new guidance, even if a recent review was completed, before any ICE inspection occurs. This may include reassessing onboarding procedures, ensuring personnel are properly training on current I-9 requirements, and verifying that any electronic systems used are compliant with ICE standards.
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