This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
A recent fact sheet, Form I-9 Inspection Under Immigration and Nationality Act § 274A, released by U.S. Immigration and Customs Enforcement (ICE), indicates a change in policy that increases the risks for employers by reclassifying some former technical violations as substantive. Some of the reclassified errors now considered substantive, for example, include failure on the I-9 form to:
- Include employee’s date of birth or date of hire
- Include employee’s rehire date
- Date Section 1 or Section 2 Certification
- Use a Spanish-language form outside of Puerto Rico
- Include translator’s name, address, signature or date
The fact sheet includes lists of additional violations considered substantive or technical, along with a flow chart outlining the I-9 inspection process and information on penalty calculations. The fact sheet notes that an employer may receive a monetary fine for all substantive violations and any uncorrected technical or procedural failures. Employers have at least 10 business days after the inspection to correct technical or procedural failures, but not substantive violations.
The bottom line: Employers should carefully ensure that every piece of required information is entered accurately and completely on the I-9 form.
