New ICE Audit Rules: 5 Tips to Avoid Costly I-9 Mistakes

The financial exposure for a sloppy I-9 binder just went up significantly, and a company with a handful of paperwork errors per file could be looking at six-figure liability if ICE comes knocking... Expect more knocks.

U.S. Immigration and Customs Enforcement (ICE) recently issued updated Form I-9 inspection guidance that quietly changed the rules of the game for employers. Dozens of paperwork mistakes that used to be considered “technical” errors, the kind you could fix during a 10-day cure period after an audit, are now classified as substantive violations. Once ICE shows up at your door, you can no longer fix them. You just pay for them.

With the current administration’s increased focus on workplace immigration

enforcement, this is not a back-of-the-line compliance issue. Employers should be paying attention, especially because there is no minimum headcount to be required to comply; Employers with even one employee are required to have current and accurate I-9s. Keep reading for tips on how to avoid costly mistakes

What Changed

The new ICE guidance reclassifies a long list of previously “technical” mistakes as substantive violations that cannot be corrected once a Notice of Inspection is served. Fines run from roughly $288 to $2,861 per form.

Section 2 omissions create the biggest exposure risk for employers.  These would include a missing document title, number, or expiration date, even if a clear copy of the supporting document (e.g., license or passport) is attached.  Previously, if you forgot to write down a document number in Section 2 but had a copy of the document attached, that was a fixable, technical error. Under the new guidance, the omission is substantive. The attached copy will not save you.

Other costly mistakes include:

• Missing Section 1 data such as employee date of birth, hire date, or signature.

• Missing employer attestation details such as employer name, title, or business address.

• Remote verification missteps, including failing to check the “alternative procedure” box or using remote review without active E-Verify enrollment.

• Supplement B errors such as missing rehire dates or employer signatures on reverifications.

• Using the Spanish-language Form I-9 for employees outside Puerto Rico.

Five Tips to Avoid Costly I-9 Mistakes

1. Run a privileged internal I-9 audit. Counsel-led review identifies and remediates errors and triggers the five-year statute of limitations on those errors. This means that the five-year clock will start now instead of when/if ICE does an inspection, which would extend the potential period of exposure for prior and existing employee documents. 

2. Standardize how you fix mistakes. Corrections must follow USCIS protocols: strike-through, initial, and date anything you change after the initial document execution date.

3. Audit your remote verification workflow. Confirm active E-Verify enrollment (if you use remote verification OR are required to E-Verify because of your employee count or state of operation) and that the “Alternative Procedure” box is checked every time.

4. Retrain your onboarding team. Whoever completes I-9s needs to understand that good intentions are no longer a defense.

5. Confirm you are using the current Form I-9. Old versions in circulation create unnecessary risk.

   
   

The Bottom Line

I-9 compliance has historically been an area where employers could get away with small mistakes, because the agency gave you room to clean them up. Those days appear to be over. Taking the time to review and fix any errors is a lot cheaper than a per-form fine on every employee in your company.

If you would like help conducting a privileged I-9 audit, training your HR team on the new guidance, or building out compliant onboarding protocols, call us, we are happy to help.