On March 16, the U.S. Immigration and Customs Enforcement (ICE) published a new Fact Sheet entitled “Form I-9 Inspection Under Immigration and Nationality Act § 274A,” that expands the types of violations that could result in employer fines. Of note, this is the first agency update of I-9 audit elements and penalties in years so employers should pay attention and recognize this is an area of focus for the current administration.

ICE has authority to inspect employers’ compliance with the I-9 employment verification system required by the Immigration Regulation and Control Act of 1986 (IRCA). Upon receiving a Notice of Inspection, employers must produce completed Form I-9s for all current and some former employees within three business days. Regular I-9 compliance self-audits can prepare employers for such inspections, making it more likely they will be able to provide records on such a short timeline.

If ICE finds “substantive” violations of the I-9 procedure during an inspection, they can issue either a Warning Notice, which will likely result in a subsequent inspection at a later date, or a Notice of Intent to Fine, which will result in a fine unless the employer successfully challenges ICE’s findings at a hearing conducted by the U.S. Department of Justice. Fines range from $288-$2,861 per form and are subject to adjustment up or down based factors such as the employer’s size, the seriousness of the violation, and the employer’s history of compliance. The law also recognizes that employers can have “technical or procedural” I-9 failures that will not be penalized if corrected within 10 business days of notice.

ICE’s new Fact Sheet specifies types of I-9 violations that will now be considered “substantive” failures to comply. Some of the listed substantive failures are consistent with past practice, such as failure to present a timely-completed I-9 for each employee. But the new list broadens the scope of substantive violations to include more, such as:

• Using the Spanish language I-9 outside Puerto Rico
• Using an electronic I-9 process that does not meet all the ICE standards
• Omitting the employee’s full legal name, or the signature and date of signing for the employer representative
• Omitting the employee’s date of birth, citizenship status, or employee’s signature and notation of the date of signing
• For foreign nationals, omitting an employee’s Alien Registration Number, foreign passport number and country of issuance, and the expiration date for an employee’s work authorization
•  Failure to record information about the documents examined, disclose details of an authorized alternative procedure, or complete supplemental information
• Failure to print the employer’s complete name and the employee representative’s title, and provide the date of hire.

All these are items that would likely be flagged in an employer’s I-9 self-audit.
The attorneys and HR professionals at Lake Effect can assist employers with conducting proactive I-9 compliance self-audits to ensure their readiness for a formal government inspection. We also provide guidance on employment-related administrative agency actions, as well as employment laws, regulations, and agency guidelines. We continue to monitor important legal and HR developments, as well as other information that could impact the workplace. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.