U.S. Immigration and Customs Enforcement (“ICE”) has issued updated guidance on Form I-9 inspections that significantly alters how employers should assess compliance risk. While the governing statute and regulations remain unchanged, ICE’s revised enforcement position narrows the practical availability of the 10-day cure period and reclassifies a broader range of errors as substantive violations—exposing employers to immediate civil penalties.
The 10-Day Cure Period: Statutorily Intact, Practically Limited
Under the Immigration Reform and Control Act, employers must be given at least 10 business days to correct technical or procedural violations identified during an inspection. Historically, this provision provided meaningful protection, allowing employers to correct common clerical errors without penalty. ICE’s updated guidance does not eliminate this requirement. However, by redefining which violations qualify as “technical,” ICE has effectively reduced the situations in which the cure period applies. As a result, fewer violations are eligible for correction and more are immediately subject to fines.
Expansion of “Substantive” Violations
Traditionally, I-9 violations were divided into two primary categories: (a) Technical or Procedural Violations which are correctable within 10 days with no penalty (if cured); and (b) Substantive Violations which are material failures in the employment eligibility verification process with immediate penalties. ICE has broadened the category of substantive violations to include errors that were historically treated as technical.
Examples of violations treated as substantive now include:
- Missing employee date of birth, date of hire or employer signature or attestation details;
- Failure to date Sections 1 or 2;
- Incomplete preparer/translator certification;
- Improper use of noncompliant forms or procedures;
- Deficiencies in remote verification documentation.
Because these violations are now deemed “substantive,” they are not eligible for the 10-day cure period and may result in immediate penalties upon inspection.
Recommended Next Steps
Employers should consider the following actions:
- Conduct privileged internal I-9 audits
- Review and update I-9 completion and retention procedures
- Provide targeted training to HR personnel
- Evaluate remote verification practices for compliance
- Consult counsel regarding risk mitigation strategies
Bottom Line
ICE’s updated guidance does not constitute a statutory overhaul; rather, it is a policy shift with real enforcement consequences. ICE has effectively narrowed the margin for error in I-9 compliance without changing the underlying law. By expanding the scope of substantive violations, ICE has effectively reduced the availability of the 10-day cure period and increased the likelihood of immediate penalties. Employers should assume that previously correctable errors may now be treated as violations subject to fines and adjust compliance practices accordingly. Questions on how these developments may impact your business? Reach out to your trusted Felhaber attorney for guidance.