Heads Up for U.S. Employers!

U.S. Immigration and Customs Enforcement (ICE) has updated its Form I-9 Inspection Fact Sheet to reflect that errors previously classified as technical or procedural deficiencies will now be considered substantive violations subject to significant monetary penalties. Form I-9 Inspection Under Immigration and Nationality Act § 274A | ICE.

Monetary Penalties for Failures to Ensure I-9 Compliance

Employers and employees must be aware that the current range of up to $2861.00 per I-9 may be levied for even the most technical and simple oversights. We would recommend that employers review I-9s with the eye of audit requests, lack of 10-day grace period for a response and build up their internal systems to adhere to the highest level of compliance in anticipation of ICE knocking at the door.

Errors That Will Now be Subject to Violations

After nearly thirty years, the I-9 form which has generally been interpreted to bifurcate technical from substantive violations, with ‘good faith exceptions’ tossed in for good measure, will no longer be considered as benign as previously interpreted.  For example, prior errors which might have been considered technical, such as omission of date of birth, lack of an “A” number (permanent resident card number) for an employee or failure to enter information provided with an expiration date on an employment authorization document will now be considered a substantive violation.

Other sections of the I-9 form previously considered technical violations, including lack of a document title, failure to verify a replacement document within the 90-day period described following a document receipt, failure to include the title of the employer or authorized representative and lack of signature by employer on the form, will also be considered substantial violations.

Further, the I-9 supplement forms which previously were excused as technical violations, will now be considered substantial, including incomplete preparer and/or translator data in Supplement A, no date of rehire in supplement B, failure to include a document title, document number and/or expiration date (if any) of a List A or C document in Supplement B. 

In addition, the revised fact sheet places greater emphasis on failures associated with the Spanish language version of the Form I-9 (permitted only in Puerto Rico) as substantive violations.

FOR MORE INFORMATION: 

To discuss how the reclassified 1-9 technical violations may impact your business, reach out to a member of the Tarter Krinsky & Drogin Business & Corporate Immigration team.