During a self-audit of our Forms I-9, we discovered that one of our employees had filled out the Spanish language Form I-9 instead of the English Form I-9. Is this an issue and if so, what should we do to correct this?
Yes, this is likely an issue. Employers and employees in the United States, except Puerto Rico, must complete the English version of Form I-9. As discussed below, it is important to correct promptly any Form I-9 errors that an employer discovers in a self-audit.
English Form I-9 Required
The Immigration Reform and Control Act of 1986 requires all employers and employees in the United States to complete the English Form I-9. Only employers and employees in Puerto Rico may fill out the Spanish language version.
Spanish-speaking employers and employees in the 50 states and other U.S. territories can print out the Spanish Form I-9 and instructions to use as a translation tool, in addition to allowing the employee to use a preparer or a translator, but the Form I-9 must be completed in English to meet employment eligibility verification requirements.
Correcting Form I-9 Errors
If an employer discovers errors or missing information during an internal Form I-9 audit, it is important that the employer take steps to correct the errors as soon as possible.
In this case, an employer self-audit revealed that an employee filled out the Spanish Form I-9 instead of the English form they should have used. The employer should correct this error immediately by reaching out to the affected employee and asking that they complete the current English version of the Form I-9. The current Form I-9 is dated 01/20/25 and is valid through May 31, 2027.
The employer should attach the new English Form I-9 to the old Spanish Form I-9 in the file. The employer also should attach a signed written memo explaining that a new Form I-9 was created because the employer discovered, during an internal audit, that the Spanish language version was used in error.
The U.S. Citizenship and Immigration Services (USCIS) provides employers with information on how to correct different types of Form I-9 errors and missing information at I-9 Central | USCIS and in the Handbook for Employers M-274 | USCIS.
Going forward, this employer should update their Form I-9 compliance policies and procedures and ensure that all future Forms I-9 are completed in English.
Increased Penalty Risk
The U.S. Immigration and Customs Enforcement (ICE) is authorized to conduct Form I-9 audits and assess penalties against employers for failing to maintain accurate records.
ICE recently revised its Form I-9 inspection policy and reclassified numerous common Form I-9 violations from correctible “technical” violations to “substantive” violations, subject to immediate penalties.
For example, completion of the Spanish language Form I-9 outside of Puerto Rico is now treated as a “substantive” violation under the new ICE inspection policy. The new substantive violations significantly increase the risk of penalties for employers. Current penalties range from $288 to $2,861 per Form I-9 violation.
As a result, employers should conduct regular internal Form I-9 audits. Along with ensuring compliance, self-audits can help employers identify Form I-9 errors and make any necessary corrections before an ICE audit.
Employers should consult with legal counsel if they have any questions about conducting a Form I-9 internal audit or about Form I-9 compliance or penalties.
For detailed guidance on completing Form I-9, CalChamber members can visit the HR Library on HRCalifornia.
Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred members and above. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.
