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ICE, in a “fact sheet” available on its website, has made a significant change to the way it conducts I-9 audits. Specifically, ICE has broadened what it considers to be a “substantive” violation on an I-9. This change is likely to increase the financial penalties employers face during an audit, impacting all employers (including those who have already conducted an internal audit). This change to ICE’s protocol may signal increased enforcement in the coming weeks and months. 

Key Takeaways

In response to this change, employers should: 

  • Conduct an I-9 audit to determine potential penalties under the new guidelines and determine which, if any, substantive errors can be rehabilitated.
  • Conduct internal training to ensure the company has an established I-9 protocol and team to ensure the process is being completed accurately and in a timely manner.
  • Create a protocol for the handling of I-9 audits at the worksite should ICE issue a subpoena.

In more detail

The Immigration Reform and Control Act (IRCA), enacted on November 6, 1986, requires employers to verify the identity and employment eligibility of their employees and sets forth criminal and civil sanctions for employment-related violations. During an I-9 audit, ICE reviews the accuracy and completeness of an employer’s I-9s to determine the volume of: (i) missing I-9s; (ii) technical violations; and (iii) substantive violations. ICE must permit employers to correct technical violations before issuing a fine; a substantive violation is cause for a fine without opportunity for rehabilitation. Fines range from $288 to $2,861 per I-9 violation.

ICE’s new fact sheet broadens the definition of substantive violations, thereby increasing potential employer liability without the opportunity to rehabilitate in the event of a Government audit. This is a change to the agency’s historical interpretation of the governing law and its own internal memorandum(s). New substantive violations include:

  • Failure to ensure an employee provides date of birth (DOB) in Section 1;
  • Failure to ensure an employee provides their USCIS number in Section 1;
  • Failure to record a date in Section 1 next to employee signature;
  • No expiration date listed in Section 1, Box 4, regardless of whether such expiration date is listed in Section 2, List A, and/or the Employment Authorization Document (EAD);
  • Use of Spanish-language I-9 outside of Puerto Rico; 
  • Missing name and title of the employer representative; 
  • List A, B, or C data not fully recorded/incorrectly recorded in Section 2, such as name of document, number of documents, issuing authority, or expiration date, regardless of whether a copy of an underlying document, such as green card or driver’s license, was retained;  
  • Failure to provide the first day of employment in the Certification;
  • Failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on Form I-9 at the time of completion in Supplement A;
  • When utilizing remote verification procedure, the employer representative fails to check the alternative procedure box in Section 2 or Supplement B indicating that remote inspection was used and/or is not an active E-Verify participant when using the alternative procedure; and
  • Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation that falls short of specific DHS standards.