Labor & Employment Law Update

The U.S. Immigration and Customs Enforcement (ICE) recently posted a new factsheet making significant changes to Form I-9 inspections and which “mistakes” are correctable under the Immigration and Nationality Act § 274A (“Immigration Act”).

ICE reclassified many Form I-9 errors from “technical” to “substantive.” The impact is that clerical mistakes that employers formerly could correct during a Form I-9 audit are no longer correctable and instead are subject to immediate fines during a Form I-9 audit.

Under the Immigration Act, during a Form I-9 audit, ICE must provide employers with a minimum of 10 days to correct any technical errors that are found to be made in good faith. By reclassifying many errors from “technical” to “substantive” that takes away an employer’s ability to correct such errors and instead makes them subject to fines.

Technical Failures Under New ICE Form I-9 Guidance

ICE’s new guidance states that only the following errors may be treated as “technical”:

Section 1 - Technical Failures

1. Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed.
2. Failure to ensure that an individual provides his or her other last names used (if any) or a physical address in Section 1 of the Form I-9. A missing email address or phone number in Section 1 will not constitute a violation.
3. Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security Number is correct.

Section 2 - Technical Failures

1. Failure to record the employee’s complete name at the top of page 2.
2. Failure to provide the business name, or physical business address in Section 2 of the Form I-9.

Supplement A - Technical Failures

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

Supplement B - Technical Failures

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

That means any other error on the Form I-9 can be deemed substantive and finable. See the Factsheet for specific examples of substantive errors.

How Employers Can Ensure Compliance With Form I-9 Requirements

It is imperative that employers and their employees who are responsible for ensuring compliance with the Form I-9 understand its requirements and ensure the Form I-9 is completed properly. 

With a current fine range of $288–2,861 per form, systemic errors could be significant and crippling to a business. Employers should be reviewing their Form I-9 process, training employees on the requirements, and performing routine audits to ensure compliance.