U.S. Immigration and Customs Enforcement (ICE) significantly strengthened its compliance mandates for the Form I-9, increasing the risk and cost of common compliance errors. The update reflects a meaningful departure from longstanding guidance and requires employers to reassess their current practices.
Key Changes to I-9 Compliance
In March 2026, ICE updated its Form I-9 Inspection Fact Sheet, effectively superseding portions of the 1997 Virtue Memorandum that had governed I-9 compliance for nearly 30 years.
Historically, ICE distinguished between:
- Technical violations (curable within 10 business days); and
- Substantive violations (immediately sanctionable).
Under the prior framework, many common errors, such as missing data fields or incomplete entries, were treated as technical violations and eligible for correction upon notice.
The updated guidance significantly narrows that category. Several violations previously considered technical are now classified as substantive, eliminating the cure period and exposing employers to immediate penalties.
Current fines for substantive violations range from $288 to $2,861 per deficient Form I-9, creating significant cumulative exposure for employers with widespread documentation issues.
Importantly, ICE did not issue formal rulemaking or transitional guidance regarding these changes, leaving many employers unaware that prior compliance assumptions no longer apply.
Why This Matters
This shift removes a critical safety net employers have relied on for decades. Errors that were once fixable without penalty may now result in immediate fines.
As a result, even well-intentioned employers with compliance processes in place may face significant liability based on routine documentation mistakes.
New Substantive Violations
Beyond stricter enforcement standards, ICE now treats the following as substantive (rather than technical) violations:
- Failure to ensure an employee provides their date of birth in Section 1;
- Failure to ensure an employee provides their USCIS number in Section 1;
- Failure to record a date in Section 1 next to the employee signature;
- No expiration date listed in Section 1, Box 4, regardless of whether such expiration date appears elsewhere;
- Use of Spanish-language Form I-9 outside of Puerto Rico;
- Missing name and title of the employer representative;
- Incomplete or incorrect List A, B, or C information in Section 2 (e.g., document title, number, issuing authority, or expiration date), even where copies of documents are retained;
- Failure to provide the employee’s first day of employment in the certification;
- Failure to ensure complete preparer and/or translator information in Supplement A (name, address, signature, and date);
- When using remote verification, failure to check the alternative procedure box or use of such procedures without active E-Verify participation; and
- Deficiencies in electronic I-9 systems, including failures in audit trails, electronic signature protocols, or security documentation that do not meet DHS standards.
These items represent a significant expansion of what constitutes an immediately penalizable violation.
New Technical Errors
The updated Fact Sheet also identified additional technical violations, many of which were previously understood as such but not expressly listed in prior guidance:
- If enrolled in E-Verify, failure to ensure the employee’s Social Security Number is listed and accurate in Section 1;
- Failure to record the employee’s complete name at the top of page 2 or applicable supplements;
- Failure to ensure the employee lists other last names used, if any;
- Failure to record an employee’s new name, if applicable, during reverification in Supplement B;
- Failure to use the version of Form I-9 that is current at the time of completion;
- Failure to ensure the employee provides an address in Section 1; and
- Failure to include the employer’s business address in Section 2.
While these errors remain curable, they still present compliance risk and require timely correction upon notice.
E-Verify and Other Electronic Systems Do Not Guarantee Compliance
Employers often mistakenly assume that electronic verification systems provide full compliance protection. This is not the case. In reality:
- E-Verify does not validate whether Form I-9 is properly completed;
- Employers remain liable for all underlying I-9 errors; and
- Electronic I-9 systems must independently comply with DHS technical requirements.
The updated guidance also signals increased scrutiny of electronic I-9 platforms, particularly with respect to audit trails and system integrity.
What Employers Should Do Now
In light of these changes, proactive compliance is essential. Employers should consider:
- Conducting internal I-9 audits to identify and correct errors before an inspection. Employers should also consider engaging counsel to help preserve privilege and reduce the risk of creating a “smoking gun” documenting known compliance violations;
- Remediating deficiencies promptly and properly, consistent with I-9 correction rules;
- Reviewing and updating onboarding procedures to reduce the likelihood of errors going forward;
- Training HR personnel and managers responsible for completing and maintaining Forms I-9; and
- Standardizing audit protocols to ensure consistency across locations or departments.
Proactive correction of I-9 errors provides an important legal benefit: it stops the “continuing violation” and starts the five-year statute of limitations for paperwork violations. However, this benefit is only available if remediation occurs before ICE identifies the issue and sends a Notice of Inspection.
Conclusion
ICE’s revised enforcement posture marks a clear shift towards stricter, penalty-driven compliance. The distinction between technical and substantive violations, once a key protection for employers, has been substantially narrowed.
Employers that continue to rely on outdated guidance risk significant financial exposure. A proactive, audit-focused approach is now the most effective way to mitigate liability and ensure compliance in this evolving enforcement landscape.
Brody and Associates regularly advises management on compliance with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or (203) 454-0560.