Question: I heard that U.S. Immigration and Customs Enforcement (ICE) recently revised its enforcement policy for Form I-9, the employment eligibility verification form. As an employer, what do I need to know about the new enforcement policy?
Answer: ICE recently revised its enforcement policy on Form I-9 to reclassify several common technical errors as “substantive” violations, which ultimately increases the risk of employer penalties.
Every employer, regardless of size, must complete Form I-9 each time they hire an individual to perform labor or services in the United States in return for wages or other remuneration (e.g., food or lodging). Employers must provide applicants with the entire Form I-9, including instructions and List of Acceptable Documents. The I-9 process should occur after a conditional job offer has been made and before the applicant starts work.
Form I-9s and supporting documentation may be inspected by federal immigration agencies. Normally, the inspecting agency will give employers a minimum of three (3) business days’ notice before starting an inspection. Under California law, employers must provide employees with notices before and after the inspection.
The inspecting agency will generally request that the employer provide the I-9 forms and supporting documentation, which may include, but is not limited to, a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation, and business licenses.
If the inspecting agency finds technical or procedural violations, the employer will receive at least 10 business days to make corrections. However, substantive violations do not have a cure period. An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures.
The new inspection policy reclassifies certain violations from technical to substantive. This change effectively eliminates the 10-day cure period for many common and procedural errors.
Examples of substantive violations now include:
- Missing birthdates, hire dates, or signatures in Section 1, which pertains to employee information and attestations.
- Failing to record document titles, numbers, or expiration dates (even if a copy of the eligibility document is attached to the form) in Section 2, which pertains to the employer’s review and verification.
- Missing employer name, title, or business address in Section 2.
- Failing to check the “alternative procedure” box when using remote verification or using remote review without being an E-Verify participant.
- Failing to provide a rehire date or missing employer signatures on Supplement B, which is used for reverifications and rehires.
- Using the Spanish-language Form I-9 for employees outside of Puerto Rico.
Examples of technical violations, which may result in fines if uncorrected after the inspection, include:
- Failing to use the version of the Form I-9 that is current at the time the form is initially completed.
- Failing to record the employee’s complete name in Section 2.
- Failing to record the employee’s complete name in Supplement A or Supplement B.
The new inspection policy with expanded substantive violations means that employers have a higher risk of financial penalties for noncompliance. These financial penalties can range from $288 to $2,861 per violation.
The I-9 process can be cumbersome. Employers should carefully review the new ICE inspection policy and consider conducting an internal audit of their I-9 practices to ensure compliance with the law to avoid financial penalties.
Employers with questions about the Form I-9 and employment verification process may wish to consult with their labor counsel.