Immigration and Customs Enforcement (ICE) issued updated guidance on its I-9 inspection process that expands employer liability exposure by converting several errors previously treated as “technical or procedural” violations into “substantive” violations subject to fines without an opportunity to cure. Many common I-9 errors that employers previously understood to be minor and curable may now result in fines ranging from $288 to $2,861 per form.
The guidance identifies several common violations that will now be treated as substantive errors, including failure to ensure an employee dates Section 1 when employment begins, failure to list the date of hire in Section 2, failure to date Section 2 within three business days of the employee’s start date, failure to provide the date of rehire in Section 3/Supplement B, and use of the Spanish-language Form I-9 outside Puerto Rico. ICE also changed how it treats incomplete Section 2 information when employers retain copies of employee verification documents. Under the new guidance, failure to properly record document information in Section 2 will be treated as a substantive violation regardless of whether employers retained copies of the documents.
The guidance also places additional focus on remote document examination and electronic Form I-9 practices. ICE will treat certain remote-verification errors as substantive violations, including failure to properly mark the “alternative procedure” checkbox in Section 2 or Supplement B. ICE is also requiring employers to be active E-Verify participants, or registered in a DHS non-E-Verify remote document examination program, at the time alternative verification procedures are used. In addition, the guidance includes a matrix ICE will use in determining whether to enhance or mitigate penalties related to I-9 and E-Verify violations.