ICE Redefines 'Substantive' I-9 Violations

U.S. Immigration and Customs Enforcement (ICE) made recent changes to policies related to Form I-9 compliance.

“While the recent surge in federal worksite enforcement has captured headlines, a much quieter policy update behind the scenes appears to significantly raise the stakes for employers facing a Form I-9 inspection,” said John Fay, director of product strategy at Equifax Workforce Solutions and an expert on I-9 issues. “ICE reclassified several common administrative Form I-9 errors as ‘substantive’ violations, significantly raising the stakes for employers facing audits. As a result, mistakes that might have been treated as correctable clerical errors could now be subject to immediate monetary penalties following a Form I-9 inspection,” he said.

ICE updated its Form I-9 inspection fact sheet online, where the agency’s apparent departure from established practice was revealed: errors that for many years have been classified as technical or procedural violations as now substantive violations.

Since 1996, the federal government split I-9 paperwork violations into two categories:

• Substantive violations that could lead to hiring an unauthorized worker.
• Technical or procedural violations for administrative or clerical mistakes that could be easily corrected.

“Critically, [immigration law] provides employers with a statutory defense for technical failures,” Fay said. “If ICE identifies a technical error during an audit, they must provide the employer with a minimum of 10 business days to correct the oversight before a fine can be issued. [It was established] that many minor oversights could be treated as correctable technical errors, provided the employer acted in good faith.”

Related eLearning: I-9 & E-Verify Made Simple — A Practical Guide to Employment Eligibility

The newly revised ICE fact sheet updates these longstanding definitions, reclassifying several common errors as substantive, including:

• Missing date of birth.
• Missing date of hire.
• Incorrect use of Spanish-language I-9 outside of Puerto Rico.
• Preparer and/or translator errors. “ICE notes that a failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on the Form I-9 at the time of completion in Supplement A is a substantive violation,” Fay said.
• Missing title of the employer or authorized representative.
• Failure to date sections 1 or 2.
• Failure to enter rehire date. “ICE notes that failure to provide the date of rehire in Supplement B would now be substantive,” Fay said.

Under the new ICE guidance, procedural failures related to the 2023 remote verification procedure are now to be classified as substantive violations, including 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.

Fay said that many organizations have transitioned to electronic I-9 software to help streamline the onboarding process, but while using the right software can help reduce mistakes, ICE’s updated guidelines reflect that simply digitizing the form is not enough.

“If an electronic I-9 system’s audit trails, electronic signature protocols, or security documentation fall short of specific standards, the procedural failures of the software may be treated as substantive violations for the employer,” he said.

“The key takeaway for employers is that the margin for administrative error during an I-9 audit has narrowed,” Fay said. “Practices that were previously correctable may now result in immediate fines.”

Fay recommended employers continue to conduct routine I-9 assessments, review virtual I-9 procedures, evaluate electronic I-9 systems, and enhance I-9 training.

“Ensure that HR professionals, managers, or recruiters involved in I-9 completion understand the rules for completing I-9s and the importance of ensuring accurate dates and entries,” he said.