Nearly a dozen Form I-9 errors that for decades were considered technical, “fixable” errors during an audit are now considered substantive errors and therefore immediately subject to fines.
Updated guidance released by the U.S. Immigration and Customs Enforcement reclassified 11 Form I-9 errors as substantive, including errors in sections 1 and 2 and supplements A and B but also throughout the form and in the electronic record.
Substantive errors now include but are not limited to:
- Missing employee date of birth in section 1
- Missing date next to the employee’s signature in section 1
- Incomplete document information in section 2
- Failure to check the alternative procedure box if the employer inspected the form remotely
Legal and human resources experts are calling ICE’s March policy change a “quiet” one but one with immediate consequences for employers during an ICE audit. Immediately imposable fines can reach $2,861per substantive violation with the potential for dozens of fines per Form I-9. For larger businesses, these fines can compound quickly.
Several errors retain the technical classification, and federal law allows employers 10 days to correct those errors before fines are imposed.
Digitized Form I-9s still subject to violations
Employers who use software for electronic I-9 onboarding and retain digital copies of employees’ identity or other supporting work documents are not exempt from ICE’s guidance and must still ensure the forms themselves are complete.
Deficiencies in electronic I-9 systems, such as with audit trails and e-signatures, are also now considered substantive errors.
Periodically audit Form I-9s for compliance
Employers should review ICE’s updated Form I-9 guidance, especially the sections “Form I-9 Substantive Paperwork Violations” and “Form I-9 Technical or Procedural Failures and Potential Violations if Uncorrected.” They should also periodically audit their Form I-9s and electronic I-9 systems for compliance to avoid immediate fines for potential violations.