Hunton Employment & Labor Perspectives

Without fanfare or formal announcement, U.S. Immigration and Customs Enforcement recently implemented a policy shift that will materially increase fine amounts that U.S. employers potentially face during I-9 audits.

For decades, U.S. employers relied on the distinction between technical (also called procedural) and substantive I-9 violations set out in a 90s-era policy memorandum from the former Immigration and Naturalization Service and on lenience granted under the Good Faith Compliance Provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Subsequently, in memos of 2008, 2009 and 2013, ICE reaffirmed that employers act in good faith – and are therefore exempt from fines – if they correct relatively minor I-9 mistakes within 10 days of being notified in a government audit.

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