New rules could trigger substantial fines for employers
Earlier this year, U.S. Immigration and Customs Enforcement (ICE) quietly published “Form I-9 Inspection Under Immigration and Nationality Act § 274A.” The document dispenses with the traditional inspection framework — established by the Virtue Memorandum in 1997 — that distinguishes between correctable technical errors and fineable substantive violations on Form I-9. The new inspection protocol reclassifies a significant number of errors previously labeled as “technical” as substantive violations that are immediately subject to fines. For almost 30 years, employers had a reliable grace period to correct minor technical errors on the I-9 Form. That grace period is now gone, and easily correctable errors — like missing an employee’s date of birth or hire date — could trigger substantial fines for employers.
Penalty amounts are set by statute and adjusted annually for inflation. Each substantive violation and each uncorrected technical error is a separate chargeable offense. Large companies that electronically manage high volumes of I-9 forms are particularly at risk. Fines from $288 to $2,861 for each form with an error add up quickly. For example, a business with 100 forms containing errors could face a penalty of more than $250,000.
What’s changed?
Items previously considered technical violations — or not a violation at all — that are now substantive violations include:
- The employee’s failure to provide their date of birth in Section 1;
- The employee’s failure to list an Alien Registration Number in Section 1;
- The employee’s failure to record the date in Section 1 next to their signature;
- The use of the Spanish-language I-9 form outside of Puerto Rico;
- Failing to record the name and title of the employer representative in Section 2 who verified the employee’s documents;
- Failing to fully record or incorrectly record the List A, B, and/or C documentation in Section 2, regardless of whether a copy of the document that was presented was retained;
- The employer’s failure to list the first day of employment in the Certification section;
- Failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on Form I-9 at the time of completion in Supplement A;
- The employer’s failure to check the alternative procedure box in Section 2 of Supplement B if remote document verification was used;
- Use of the remote document verification procedure by a non-E-Verify employer; and
- Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation that falls short of specific Department of Homeland Security (DHS) standards.
ICE has also introduced a few new technical violations, such as using an outdated version of the form, that can be corrected within the designated correction period. They become substantive violations if left unaddressed.
Prepare for stricter enforcement
Immigration enforcement is a priority of the Trump administration, and employers are advised to have a clear plan for handling ICE I-9 inspections. In addition to continually reassessing and aligning electronic I-9 systems with the most recent guidance, employers are advised to review the audit trail associated with these records. Who entered what, and when? The I-9 form may be flawless, but if the audit trail isn’t clear, it could be invalidated during an ICS audit.
Companies that hire across multiple locations or use remote onboarding workflows are more prone to Form I-9 errors. Employers with multiple HR teams, hiring managers, or electronic systems are advised to take extra steps to ensure that Form I-9 completion and correction practices are standardized.
If employers receive a notice of intention to fine, under 5 U.S.C. §§ 554-557, they may request — within 30 days — a hearing before an administrative judge at the Office of the Chief Administrative Hearing Officer within the Executive Office for Immigration Review at the Department of Justice.
If you would like assistance reviewing your Form I-9 practices and preparing for an ICE audit — or if you have experienced an ICE I-9 audit and received a notice of intention to fine — don’t hesitate to contact Orr & Reno.
