Attention Employers: Ice’s Updated Form I-9 Fact Sheet Expands Substantive Violations, Increasing Employer Liability

The U.S. Immigration and Customs Enforcement (ICE) has raised the stakes for Form I-9 compliance. Under an updated Form I-9 Inspection fact sheet, employers now face increased exposure to immediate fines. The updated guidance expands the categories of substantive violations and narrows the scope of technical/procedural errors by reclassifying several common Form I-9 deficiencies—previously treated as technical or procedural—as substantive violations. 

This distinction is significant because substantive violations are subject to immediate civil penalties and may impact an employee’s authorization to work. Additionally, technical or procedural errors may become substantive violations if left uncorrected within 10 business days after ICE identifies the deficiencies during an inspection. 

Read on for a section-by-section summary of ICE’s revised classifications and some practical steps employers should take now.

PREPARING THE FORM I-9

Substantive Violations

• Failure to prepare the form.
• Failure to present the form for inspection upon request.
• Failure to ensure timely preparation of Section 1 and/or failure to timely prepare Section 2 (and/or Supplement B, if applicable).
• Completion of a Spanish-language version of the form outside of Puerto Rico.
• Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, and electronic signature(s) for the employee, employer, recruiter, referrer for a fee, or representative.

SECTION 1

Substantive Violations

Failure to:

• Ensure the employee completes their printed or typed legal name and date of birth.
• Ensure the employee checks only one box attesting to their status as a U.S. citizen, noncitizen national, Lawful Permanent Resident, or alien authorized to work until a specific date.
• Ensure the employee completes the Alien Registration Number/U.S. Citizenship and Immigration Services (USCIS) Number field.
• Ensure the employee completes the Alien Registration Number/USCIS Number field or the Form I-94 Admission Number field or, if applicable, the foreign passport number and country of issuance and the employment authorization expiration date field required for aliens authorized to work in the United States until a specific date (Alien # or Admission #).
• Ensure the employee signs the attestation portion of Section 1.
• Ensure the employee dates Section 1.

Technical/Procedural Errors

Failure to:

• Use a current version of the Form I-9 during initial completion.
• Ensure an individual provides any other last names used or a physical address in Section 1 (a missing email address or phone number in Section 1 will not constitute a violation).
• When enrolled and utilizing E-Verify, ensure that the employee’s Social Security Number is correct.

SECTION 2

Substantive Violations

Failure to:

• Verify a proper List A document or proper List B and List C documents within three business days following the date of hire by physically examining original and acceptable documentation and determining that the document appears to be genuine on its face and reasonably related to the individual.
• Record the document title, issuing authority, document number(s), and/or expiration date(s) (if any) of acceptable documents.
• Record the document title, issuing authority, document number(s), and/or expiration date of a required replacement document; verify it within the 90-day period for receipts issued in connection with an application to replace a lost, stolen, or damaged document; and determine that the document appears to be genuine on its face and reasonably related to the individual.
• Mark the alternative procedure box in Section 2 if the employer used an alternative DHS-authorized procedure to examine documents.
• Be an active E-Verify participant or registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program when checking the alternative procedure box. 
• Print the complete name and title of the employer or authorized representative.
• Provide the date of hire in the attestation portion of Section 2.
• Sign the Certification portion of Section 2.
• Date the Certification portion of Section 2.

Technical/Procedural Errors

• Failure to record the employee’s complete name at the top of page 2.
• Failure to provide the business name or physical business address.

SUPPLEMENT A: PREPARER AND/OR TRANSLATOR CERTIFICATION

Substantive Violations

Failure to ensure an assisting preparer and/or translator’s complete name, address, signature, and date are provided on the Form I-9 at the time of completion.

Technical/Procedural Errors

Failure to record the employee’s full name at the top of Supplement A.

SUPPLEMENT B: REVERIFICATION AND REHIRE

Substantive Violations

Failure to:

• Date Supplement B not later than the expiration date of an employee’s temporary employment authorization, verify the individual’s continued employment eligibility by physically examining original and acceptable documents, and determine that the document appears to be genuine on its face and reasonably related to the individual.
• Provide the date of rehire in Supplement B, or in an alternate applicable section or supplement pertaining to a required reverification or rehire entry.
• Record the document title, document number(s), and/or expiration date(s) (if any) of an acceptable document.
• Record the document title, document number(s), and/or expiration date (if any) of the required replacement document; verify it within the 90-day period for receipts issued in connection with an application to replace a lost, stolen, or damaged document; and determine that the document appears to be genuine on its face and reasonably related to the individual.
• Print the complete name of the employer or authorized representative, sign and date the “Reverification and Rehires” portion of Supplement B, or an alternate applicable section or supplement pertaining to a required reverification or rehire entry on or before the expiration date of the employee’s previously presented temporary employment authorization.
• Mark the alternative procedure box if the employer used an alternative DHS-authorized procedure to examine documents.
• Be an active E-Verify participant or registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program when checking the alternative procedure box.

Technical/Procedural Errors

• Failure to record the employee’s full name at the top of Supplement B.
• Failure to record the employee’s new name (if applicable) in the applicable section.

EMPLOYER TAKEAWAYS

Errors that previously may have been correctable without penalty may now expose employers to immediate civil fines. Fines for substantive violations range from $288 to $2,861 per Form I-9 based on various factors (e.g., business size, good faith, seriousness, violation history, etc.). Combined with the recent uptick in ICE worksite enforcement and Form I-9 inspection activity, the expansion of substantive violations significantly increases employers’ potential civil penalty exposure. To mitigate risk, employers should take the following action steps:

• Conduct a proactive Form I-9 audit using ICE’s updated classifications, paying particular attention to deficiencies that are now considered substantive violations.
• Correct all technical and procedural errors promptly, as uncorrected deficiencies may become substantive violations if not remedied within 10 business days following an ICE inspection.
• Review Form I-9 completion procedures and train HR personnel on the updated classifications, including revised requirements for Sections 1 and 2 and Supplements A and B.
• Verify compliance with alternative document examination procedures, including applicable E-Verify participation requirements and proper completion of the alternative procedure checkboxes.
• Review electronic Form I-9 systems and recordkeeping practices to ensure they comply with ICE’s electronic completion, retention, security, and inspection requirements and are prepared for an audit.

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If you have any questions related to the fact sheet or need assistance reviewing your Form I-9 procedures or protocol, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100 or 619.292.0515.