Form I-9 compliance has long been a critical responsibility for U.S. Employers. Federal law requires employers to complete and retain Form I-9, Employment Eligibility Verification, for every employee in order to verify their identity and authorization to work in the United States. While employers have always been expected to maintain accurate Form I-9 records, recent changes implemented by U.S. Immigration and Customs Enforcement (“ICE”) have heightened the importance of careful and accurate completion of these forms.
ICE recently issued guidance that significantly increases the risks associated with even seemingly minor errors on Form I-9. Under the new guidelines, several clerical mistakes that were previously classified as technical violations are now considered substantive violations, exposing employers to immediate and costly penalties during an I-9 audit.
ICE has the authority to audit an employer’s I-9 records at any time by issuing a Notice of Inspection. Once a Notice of Inspection is received, employers generally have only three business days to produce all requested Form I-9s, along with any supporting documentation that has been requested. This short turnaround period leaves little time to identify and correct deficiencies after an audit has begun.
I-9 violations fall into two categories: (1) substantive violations and (2) technical/procedural violations. Historically, technical/procedural violations involved clerical or administrative errors that did not directly impact an employee’s work authorization. Employers previously were given ten business days, after receiving notice, to correct these deficiencies before penalties were assessed. By contrast, substantive violations historically involved failures related to an employer’s obligation to verify employment eligibility and work authorization. These violations can result in immediate fines, which range from $288 to $2,861 per violation.
The new guidelines, released by ICE, change these longstanding rules by re-classifying several technical violations as substantive violations. As a result, employers may no longer have the opportunity to correct these mistakes before penalties are imposed.
Examples of errors that were previously considered technical errors but are now substantive include (but are not limited to):
- Missing date of birth
- Missing date of hire
- Incorrect use of Spanish Language I-9 Forms outside of Puerto Rico
- Preparer/translation error
- Failure to enter rehire dates where applicable
- Failure to date section 1 and/or 2 of the I-9 Form
- Failure to check the “alternative procedure” box to indicate that remote verification was used
- Failure to be an active E-Verify participant at the time an alternative procedure was used
Given these changes, employers should proactively review their I-9 compliance practices before an audit occurs. Recommended steps include conducting an internal I-9 audit, reviewing electronic verification systems, evaluating remote onboarding procedures, and ensuring that all personnel responsible for completing Form I-9s receive thorough and up-to-date training.
With increasing scrutiny of I-9 compliance and expanding the scope of substantive violations, employers can no longer afford to treat paperwork errors as minor administrative issues. Taking preventive action now can help avoid costly penalties in the event of an audit.
