U.S. Immigration and Customs Enforcement (ICE) has revised its Form I-9 inspection fact sheet to reclassify certain errors previously treated as technical deficiencies as substantive errors. These errors will now be subject to monetary penalties. As a result, HR teams should update their internal practices and strategies to ensure full compliance.
What this means for HR professionals and employers
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Prepare ahead: Plan extra time for Form I-9 completions, to ensure there are no errors due to heightened classification risk. Be consistent and diligent in your work.
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Reconsider existing internal audits: Review your internal protocols in light of the Form I-9 changes, to confirm if revisions are needed. If your company relies on paper forms, this is especially important.
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Mitigate errors: Familiarize yourself with these new changes to mitigate against future errors.
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Monitor ICE and DHS announcements: There may be future changes that affect Form I-9 and others. There may also be legal challenges to these reclassifications.
Technical vs. Substantive Errors
For several decades, ICE has categorized errors into two categories: technical and substantive. Technical errors may be something like missing a date of hire, while substantive errors may be something like missing a signature.
Technical errors have historically been subject to an opportunity to correct, while substantive errors led to immediate penalties. This previous I-9 structure has helped shape employer best practices and internal audits.
By reclassifying certain errors from technical to substantive, there will be fewer opportunities for employers to correct these mistakes and may lead to direct penalties. For HR professionals, this means that a significant revision of internal procedures may be needed to ensure compliance with the new Form I-9. Failure to do so may lead to fines, which can quickly add up. According to John Fay, attorney, and director of product strategy at Equifax Workforce Solutions, “if you’re a medium or large employer and have a lot of these [errors], these fines are going to very quickly add up.”
See below for a complete list of changes.
All Updates
Technical to Substantive Classification Changes
These errors were either classified as technical, or were not defined at all, in the prior Form I-9.
- No date of birth
- No box checked for employee’s status (citizen, Lawful Permanent Resident, etc.)
- No “Alien Registration Number,” USCIS Number, or foreign passport information
- No employment authorization expiration date
- No employee signature date
- No document title, issuing authority, document number(s), and/or expiration dates for documents
- Failure to verify replacement document within 90-day period
- No title of employer or authorized representative
- No date of hire
- No employer or authorized representative signature date
Supplement and Process-Based Changes
These errors were either classified as technical, or were not defined at all, in the prior Form I-9.
- Incomplete preparer and/or translator data in Supplement A
- No date of rehire in Supplement B
- No document title, document number(s), and/or expiration dates in Supplement B
- Failure to verify a replacement document within 90-day period in Supplement B
- Spanish-language Form I-9 used outside of Puerto Rico
- Failure to check alternative procedure in Section 2 if relevant
- Failure to be an active E-Verify participant or registered in a DHS Non-E-Verify program when indicating alternative procedure was used
New Technical Violations
- Failure to use current Form I-9
- Failure to provide other last names used (if any)
- Failure to ensure correct Social Security Number, when using E-Verify
- Failure to record employee’s complete name at top of page 2 in Supplement A or B
- Failure to record employee’s new name (if applicable) in Supplement B
We are here to help
If you would like assistance assessing how this may affect your immigration matters – including filing strategies, compliance planning, or addressing urgent deadlines – please contact the KLF immigration professional with whom your normally work or call us on our main line at (212) 495-9245 or click here to fill out our contact form.
Disclaimer: This Business Immigration Update is for general information purposes only; it does not constitute legal advice. Actual application of laws and policies may vary based on your specific facts.