ICE Expands List of Substantive Form I-9 Violations, Increasing Financial Risk to Employers

U.S. Immigration and Customs Enforcement (ICE) recently issued an updated Fact Sheet that reflects a more aggressive enforcement approach to Form I-9 inspections. Under the new policy, ICE expanded the list of errors classified as substantive paperwork violations, increasing employers’ risk of fines for Form I-9 errors.

When ICE identifies technical or procedural failures during an I-9 inspection (audit), an employer is legally allowed 10 business days to make corrections and avoid penalties for those errors. Employers are not afforded the same opportunity for correction when ICE identifies substantive violations. Instead, substantive violations may result in immediate fines. Under ICE’s new policy, many common errors that were previously categorized as technical or procedural failures are now listed as substantive paperwork violations. Examples include:

• Missing the employee date of birth in Section 1.

• Failure to include the A-number field in Section 1.  

• Use of the Spanish-language I-9 form outside of Puerto Rico.

• Incomplete document data in Section 2 (missing title, issuing authority, etc.).

• Missing the name or title of the employer representative in Section 2.

• Failure to check the alternative procedure box in Supplement B if the employer used an alternative (virtual) procedure. 

Reclassification of these errors increases financial risk for employers as now most I-9 errors cannot be corrected. Civil penalties for substantive I-9 violations currently range from $288 to $2,861 per form. Even minor errors can add up quickly across a large workforce, significantly increasing an employer’s overall penalty exposure.

What employers should do now: ICE I-9 inspection rates continue to rise as more enforcement staff and funding are available. Employers should ensure that Form I-9s are completed as accurately as possible at the time of hire. Focusing on training and proactive internal audits can help identify recurring errors, mitigating costly penalties. Employers should also consider reviewing onboarding, reverification, and document retention practices in light of ICE’s updated I-9 inspection policy and intensified worksite enforcement efforts.

Michael Best’s immigration team regularly assists employers with Form I-9 compliance, training, internal audits, and risk-mitigation strategies. Please contact us with any questions.