Recent updates from U.S. Immigration and Customs Enforcement (ICE) have significantly changed how Form I-9 compliance is evaluated during audits. These changes increase the risk for employers by expanding what is considered a “substantive” violation.
As enforcement activity continues to rise, employers should take immediate steps to review their I-9 practices.
What Has Changed?
ICE has updated its guidance to reclassify many I-9 errors that were previously considered minor or “technical.”
In the past:
- Certain mistakes could be corrected during an audit
- Employers had an opportunity to fix issues within a short timeframe
Now:
- Many of these same errors are considered substantive violations
- Substantive violations may lead directly to penalties
What Is a Substantive Violation?
Substantive violations are errors that impact the validity of the I-9 form or the employment verification process.
Examples include:
- Failure to properly complete required sections of the form
- Missing or incorrect document information
- Failure to verify employment authorization within required timelines
Unlike technical errors, these issues are no longer easily correctable.
Why This Matters
One of the most important changes is that:
The Form I-9 must now stand on its own
Even if an employer maintains copies of employee documents:
- Missing information on the form itself may still be treated as a violation
- ICE may disregard supporting documents if the form is incomplete
This creates a much stricter compliance standard.
Increased Enforcement and Penalties
ICE audits have been increasing, and penalties can be significant.
Employers may face:
- Civil fines for each violation
- Increased liability for repeat offenses
- Additional scrutiny during future audits
Penalties can be assessed on a per-employee basis, which can add up quickly.
Common Risk Areas for Employers
Employers should carefully review their I-9 records for:
- Missing document numbers or issuing authorities
- Incomplete Sections 1 or 2
- Late completion of required sections
- Use of outdated forms
Even small errors may now carry greater risk.
What Employers Should Do Now
Given the updated enforcement approach, employers should:
- Conduct internal I-9 audits regularly
- Review current and past I-9 forms for completeness
- Ensure proper training for HR staff
- Implement consistent compliance procedures
- Work with immigration counsel for audits and corrective strategies
Taking proactive steps can help reduce exposure to penalties.
Final Thoughts
The latest updates to I-9 enforcement reflect a shift toward stricter compliance standards and increased employer accountability. With more errors now classified as substantive, employers should take immediate action to review and strengthen their I-9 processes.
Frequently Asked Questions
What is a substantive I-9 violation?
It is an error that affects the validity of the I-9 form and may result in penalties.
Can I still fix I-9 errors?
Some technical errors may still be corrected, but many issues are now classified as substantive and may not be fully curable.
Why is ICE focusing on I-9 compliance?
To increase enforcement of employment eligibility verification requirements.
What is the biggest risk for employers?
Incomplete or inaccurate I-9 forms that do not meet updated standards.
Should employers conduct internal audits?
Yes. Regular internal audits are strongly recommended.
Contact Information If you or your family members have any questions about how immigration and nationality laws in the United States may affect you, or if you want to access additional information about immigration and nationality laws in the United States or Canada, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by calling us at 201-670-0006 extension 104. We also invite you to visit our website at www.visaserve.com for more information. Nachman, Phulwani, Zimovcak (NPZ) Law Group, P.C. – VISASERVE.