I-9 Update:  ICE Redefines “Substantive” Violations – Employers Face Big Increase in Penalties

Without any announcement, U.S. Immigration and Customs Enforcement (ICE) made significant changes to their policies related to Form I-9 Employment Eligibility Verification inspections, also known as “I-9 Audits”.

ICE has published a new Fact Sheet online and as a result, it has reclassified errors that for many years have been classified as technical or procedural violations as now substantive violations.  Why is this important?  Because mistakes that previously may have been treated as correctible errors now are subject to immediate monetary penalties as a result of an I-9 Audit.

Many years ago – 1997 – the federal government divided I-9 paperwork violations into two categories:

1. Substantive violations:  these were serious errors that could potentially lead to the hiring and/or retaining  an individual unauthorized to work.
2. Technical or Procedural violations:  these were administrative or clerical mistakes, usually those that could be corrected.

What are the Mistakes that have been reclassified from technical to substantive?

• Incorrect use of Spanish-language version of the Form I-9
• Missing Date of Birth
• Missing Date of Hire
• Failure to date Section 1
• Preparer and/or Translator Errors
• Missing title of the employer or authorized representative
• Failure to date Section 2
• Failure to enter the Rehire date

What are the Mistakes that have now been classified as technical?

• E-Verify Social Security Number Mismatches
• Missing Names on Additional Pages – Page 2 for the older versions of the form and Supplements A and B of the current version of the form
• Last names used (if any)
• Name Changes – specifically failing to record an employee’s new name in the appropriate section of Supplement B during reverification
• Failing to use the correct version of the Form I-9 that was current at the time the form was initially completed

Keeping Document Copies with Form I-9

Previously, based on prior government guidance, if an employer did not record a document title, document number, or expiration date in Section 2 or 3 and they had kept a copy of that document with the Form I-9, the employer could claim the failure to write the information on the Form I-9 as a technical failure. During an I-9 Audit, the employer would be provided with ten (10) business days to write the missing information from the copy of the document onto the Form I-9.

In addition, if an employee did not include their USCIS or Alien number in Section 1 and the information was included in Section 2 or 3 or even on a copy of the document maintained with the Form I-9, the government would classify the mistake as a technical or procedural error.Now, ICE is treating these mistakes as substantive violations even if document copies have been retained with the Form I-9 or the information has been included in Section 2 or Section 3 of the Form I-9.

Electronic I-9 Systems

An important reminder to employers:  simply digitizing the Form I-9 to save electronically is not sufficient. The technology that is used to digitize the Form I-9s must meet the regulatory requirements to include indexing system, audit trails, etc.  This has always been the case.

Now, the new guidelines state that it is a substantive violation if an employer has a:

“Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer for a fee, or representative, as set forth in 8 C.F.R. § 274a.2(e), (f), (g), (h), and (i).”

Alternative Procedure requirements

Under the new ICE guidance, if there are procedural failures related to the remote verification procedure (alternative procedure), they are now to be classified as substantive violations. Such violations include the following:

• Failing to check the alternative procedure box in Section 2 or Supplement B to indicate that the remote inspection was used.
• Failing to be an active E-Verify participant at the time the alternative procedure was used to examine the identity and work authorization documents for the I-9 process.

Employer Actions

In light of ICE’s expanded definition of substantive violations, we recommend that employers take immediate steps to reassess their Form I-9 compliance programs. Errors that were previously correctable now carry direct penalty exposure, significantly increasing audit risk and financial penalties.

Actions for employers to consider:

• Conduct proactive internal I-9 audits to identify and remediate errors, with particular focus on fields now classified as substantive (e.g., missing dates, signatures, document details, and attestation elements).
• Retrain HR personnel and authorized representatives on proper I-9 completion requirements, emphasizing timing obligations and completeness of Sections 1, 2, and Supplement B.
• Review electronic I-9 systems to ensure full compliance with federal regulatory requirements, including audit trails, indexing, and electronic signature standards.
• Evaluate remote verification procedures to confirm proper use of DHS-authorized alternative procedures and E-Verify enrollment at the time of use.
• Strengthen onboarding processes and quality control measures to ensure Forms I-9 are completed accurately and timely at the outset, as post hoc corrections may no longer mitigate liability.
• Avoid reliance on document copies to cure missing information on Forms I-9, as ICE no longer treats such scenarios as technical errors.

Given the increased enforcement risk, please contact your WR Attorney with any questions and/or for assistance with I-9 compliance practices.

The following is the new guidance from ICE for Substantive Violations:

Each of the following is considered a substantive violation of Form I-9 requirements, including but not limited to the examples provided below. Additional specific violations related to each section of Form I-9 are outlined in the subsequent sections.

1. Failure to prepare the Form I-9.
2. Failure to present the Form I-9 for inspection upon request (8 C.F.R. § 274a.2(b)(3)).
3. Failure to ensure the timely preparation of Section 1 of the Form I-9 and/or failure to timely prepare Section 2 of the Form I-9 (and/or Supplement B of the Form I-9, if applicable).
4. Completion of a Spanish-language version of the Form I-9 outside of its authorized area. The Spanish-language version of the Form I-9 can only be officially completed and retained by employers and employees in Puerto Rico.
5. Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer for a fee, or representative, as set forth in 8 C.F.R. § 274a.2(e), (f), (g), (h), and (i).

For Section 1 of the Form I-9, failure to:

1. Ensure that the employee completes his or her printed or typed legal name and date of birth.
2. Ensure that the employee checks only one box attesting to whether the employee is a citizen of the United States, a noncitizen national of the United States, a Lawful Permanent Resident, or an alien authorized to work until a specified date.
3. Ensure that the employee completes the Alien Registration Number/U.S. Citizenship and Immigration Services (USCIS) Number field next to the phrase “A lawful permanent resident (Alien #).”
4. Ensure that 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 specified date (Alien # or Admission #).
5. Ensure that the employee signs the attestation portion of Section 1.
6. Ensure that the employee dates Section 1 of the Form I-9.

For Section 2 of the Form I-9, failure to:

1. 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 an original and acceptable List A document or proper and acceptable List B and List C documents described in 8 C.F.R. § 274a.2(b)(l)(v)(A), and determining that the document appears to be genuine on its face and reasonably related to the individual; or by physically examining original and acceptable documentation, as described in 8 C.F.R. § 274a.2(b)(l)(v)(B)-(C), and determining that the document appears to be genuine on its face and reasonably related to the individual.
2. Record the document title, issuing authority, document number(s), and/or expiration date(s) (if any) of an acceptable List A document or original and acceptable List B and List C documents described in 8 C.F.R. § 274a.2(b)(1)(v)(A)-(C).
3. Record the document title, issuing authority, document number(s), and/or expiration date of the replacement document required to have been presented in accordance with 8 C.F.R. § 274a.2(b)(1)(vi)(A). Verify within the 90-day period described in 8 C.F.R. § 274a.2(b)(1)(vi)(A)(3) the replacement document, in the case of a document receipt issued in connection with an application to replace a lost, stolen, or damaged document, by physically examining the replacement document or any other valid List A or combination of List B and C documents presented by the employee in lieu of the replacement document. Determine that the document appears to be genuine on its face and reasonably related to the individual.
4. Mark the alternative procedure box in Section 2 if the employer used an alternative procedure authorized by DHS to examine documents.
5. Be an active E-Verify participant or registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program when putting a check mark to notate that an alternative procedure was authorized by DHS to examine documents;
6. Print the complete name and title of the employer or authorized representative.
7. Provide the date of hire in the attestation portion of Section 2 of the Form I-9.
8. Sign the Certification portion of Section 2.
9. Date the Certification portion of Section 2.

For Supplement A of the Form I-9, Preparer and/or Translator Certification for Section 1, failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on the Form I-9 at the time of completion, when either a preparer and/or translator was used to assist the employee in the completion of the form.

For Supplement B of the Form I-9, Reverification and Rehire (or alternate applicable section or supplement pertaining to a required reverification or rehire entry), failure to:

1. Date Supplement B of the Form I-9 not later than the date on which an employee’s temporary employment authorization expires, verify the individual’s continued employment eligibility by physically examining an original and acceptable document described in 8 C.F.R. § 274a.2(b)(1)(v)(A) and determining that the document appears to be genuine on its face and reasonably related to the individual; or by physically examining an original document described in 8 C.F.R. § 274a.2(b)(1)(v)(C) and determining that the document appears to be genuine on its face and reasonably related to the individual.
2. Provide the date of rehire in Supplement B, or in an alternate applicable section or supplement pertaining to a required reverification or rehire entry, of the Form I-9.
3. Record the document title, document number(s), and/or expiration date(s) (if any) of an acceptable document described in 8 C.F.R. § 274a.2(b)(l)(v)(A) or (C).
4. Record the document title, document number(s), and/or expiration date (if any) of the replacement document required to have been presented in accordance with 8 C.F.R. § 274a.2(b)(l)(vi)(A), and verify within the 90-day period described in 8 C.F.R. § 274a.2(b)(l)(vi)(A)(3) the replacement document in the case of a document receipt issued in connection with an application to replace a lost, stolen, or damaged document, by physically examining the replacement document or any other valid List A or List C document presented by the employee in lieu of the replacement document and determining that the document appears to be genuine on its face and reasonably related to the individual.
5. 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 date the employee’s previously presented temporary employment authorization expires.
6. Mark in the alternative procedure box in Supplement B if the employer used an alternative procedure authorized by DHS to examine documents.
7. Be an active E-Verify participant or registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program when checking that it used an alternative procedure authorized by DHS to examine documents.

The following is the new guidance from ICE for Technical or Procedural Violations and Potential Violations if Uncorrected:

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.