United States | ICE updates website on Form I-9 inspection process with revised fact sheet

U.S. Immigration and Customs Enforcement (ICE) recently updated its website on Form I‑9 Inspection Under the Immigration and Nationality Act § 274A  with guidance regarding the classification of certain I-9 violations, inspection process and enforcement.

Key takeaways:

More Form I‑9 errors classified as “substantive” violations means increased exposure to penalties. The new guidance reclassifies multiple errors as “substantive” violations, which under prior guidance the government would have deemed “technical” or “procedural” and allowed employers 10 days to correct and avoid civil penalties. However, the government does not provide an opportunity to correct “substantive” violations that ICE identifies during an inspection. The guidance also identifies violations that were not addressed in prior guidance. An itemized list of Form I-9 substantive violations and technical/procedural failures by section can be found here.

Assessing civil penalties. The overall percentage of Forms I-9 with substantive errors or uncorrected technical/procedural errors determines the “base fine amount” for all violations. If fewer violations are deemed technical (and therefore correctable), employers are likely to be subject to higher fines resulting from a Form I-9 inspection. According to the guidance, “This percentage may change depending on whether the offense being evaluated is the employer’s first offense, second offense or a third or higher offense.”

Additional information: All U.S. employers must complete the Form I-9 for every individual they hire for employment in the United States to verify their identity and employment authorization. Considering ICE’s latest I-9 guidance, employers may want to review their Form I‑9 completion and internal review practices or consult with BAL I-9 immigration compliance experts to help reinforce their employment eligibility verification compliance programs and minimize errors. BAL will continue to monitor these policy developments and provide updates.

This alert has been provided by the BAL U.S. Practice Group.

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