Immigration and Customs Enforcement (ICE) recently confirmed that employers should be provided 10 days to cure technical or procedural paperwork violations following a government I-9 audit. This reassuring news comes courtesy of the American Immigration Lawyers Association (AILA), which recently met with ICE HQ to discuss I-9 violations amidst the recent flurry of audits and some inconsistent practice at local ICE offices. In response to questions by AILA, ICE confirmed that penalties were still based on INS guidance from the late 1990s, which categorized I-9 errors into two groups: substantive verification failures, which are not subject to the ten-day correction period, and technical or procedural verification failures, which may be corrected. Substantive errors could arise, for example, when the employee fails to sign section 1 or forgets to check one of the boxes indicating his or her citizenship or immigration status. Technical or procedural violations tend to be more benign in nature including, for example, the failure of the employee to enter his or her maiden name, address, or birth date in Section 1 or failure of the employer to provide the title, business name, and business address in Section 2.
It’s important to note, however, that an employer must have made a good faith effort to comply with the I-9 requirements in order to take advantage of the ten-day correction period. So if an employer repeatedly made mistakes in knowing reliance of the 10 day correction period or attempted to correct the errors by back-dating, ICE may very well fine them to the fullest extent.
Assessing whether your I-9 errors are substantive versus technical is a complex process, requiring analysis of various policy memoranda and case law. If you are facing a government audit, it’s always best to consult experienced legal counsel who can advise you on your potential I-9 liability and a prudent course of action.