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Federal immigration compliance has always required employers to maintain accurate Form I-9 records, but recent changes issued by U.S. Immigration and Customs Enforcement (ICE) significantly raise the stakes for even seemingly minor paperwork mistakes. In this article, we explore how ICE’s updated guidance reclassifies certain longstanding clerical errors as substantive violations, increasing the risk of immediate fines for employers during an I-9 audit. 

Employers in the U.S. are required to complete and retain Form I-9s to verify the identity and employment authorization of individuals hired to work. ICE has authority to audit an employer’s I-9 files at any time after issuing a Notice of Inspection, and employers typically have only three business days to produce requested records. Historically, I-9 violations have been divided into two categories: substantive violations and technical or procedural violations. 

For decades, this distinction provided employers some protection against immediate penalties for clerical errors. Technical or procedural violations generally involved administrative mistakes that could be corrected after notice from ICE. Employers were typically provided ten business days to cure those defects before penalties could be imposed. By contrast, substantive violations were treated as major compliance failures and could trigger immediate fines because they implicated the employer’s obligation to verify work authorization. 

ICE’s newly updated fact sheet substantially alters this framework by reclassifying several errors that were historically considered technical violations into substantive violations. This change significantly increases employer exposure because mistakes that may have previously been correctable can now lead directly to penalties. 

The revised guidance identifies several errors that are now considered substantive violations, including: 

• Missing employee date of birth 

• Missing date of hire 

• Incorrect use of Spanish-language I-9 forms outside of Puerto Rico 

• Missing preparer or translator information 

• Failure to include the title of the employer or authorized representative 

• Missing dates in Section 1 or Section 2 of the I-9 form 

• Failure to enter rehire dates when applicable 

In addition, ICE has heightened scrutiny regarding the 2023 remote verification procedures. Employers utilizing remote I-9 verification now face substantive violations for procedural missteps that might otherwise appear minor. For example, failing to check the “alternative procedure” box to indicate that remote verification was used or failing to comply with E-Verify requirements may now expose employers to immediate liability. 

These revisions are particularly significant because substantive violations indicate a failure to satisfy federal work authorization requirements. In some instances, substantive violations may involve the complete absence of an I-9 form. However, under the updated guidance, paperwork errors once viewed as clerical are now being treated as compliance failures carrying greater enforcement risk. 

As a practical matter, employers should treat this guidance as a signal to proactively review their I-9 practices. Conducting an internal I-9 audit, evaluating electronic verification systems, reviewing remote onboarding procedures, and ensuring personnel responsible for onboarding receive proper I-9 training are prudent risk-management steps. Employers using remote verification procedures should pay especially close attention to procedural requirements to avoid inadvertent violations. 

Given the limited timeframe to respond to an ICE Notice of Inspection and the increased penalties associated with substantive violations, employers should act quickly if an audit notice is received. If you have questions about your company’s I-9 compliance practices or need assistance responding to an ICE audit, please contact the authors or your trusted Labor & Employment counsel at Weintraub Tobin.