ICE Rewrites Enforcement Guidance for I-9 Form Violations

All employers should be aware that on March 16, 2026, the U.S. Immigration and Customs Enforcement agency (ICE) updated the I-9 Inspection Enforcement Guidance. They also published a fact sheet identifying new Form 1-9 substantive errors that were previously considered technical violations.  Substantive errors cannot be corrected during an i-9 audit and pose a significant financial burden on employers, with higher fines and penalty totals. Internally auditing your Form I-9s can help you reduce potential exposure in the event of an audit.

Reminders about I-9 Requirements and Audits

Federal law requires all employers (including those who participate in EVerify) to use the I-9 Form to verify the identity and employment eligibility of each employee.

ICE may inspect employers’ I-9s.  Audits are typically initiated by a “Notice of Inspection” (NOI). Upon receipt of an NOI, an employer has three business days to provide the records.

• In addition to making sure I-9s are completed properly, California employers who receive notice of I-9 inspection are required to post a notice within 72 hours of receiving an NOI so all employees are informed that documents are being reviewed.
• Additional notice requirements to affected employees apply in the event the employer is notified by the government of any potential deficiencies in their documentation.

Substantive Violations vs. Technical or Procedural Failures

For “substantive violations” found on I-9 forms, ICE may issue a Notice of Intent to Fine.

For “technical or procedural failures,” a Notice of Technical or Procedural Failures is issued, and the employer has ten business days to make corrections.  If the employer does not correct the technical/procedural failure within that period, it becomes a “substantive” error.

Penalties for substantive violations currently range from $288 to $2,861 per violation.

What’s Different About the New Guidance?

The new Guidance expands the scope of “substantive” violations in a number of ways. Highlights include:

• Moving some types of errors from the technical/procedural category to the substantive category. Some examples are missing employee's date of birth in Section 1, or missing the employee’s date of hire or the name or title of the employer or authorized representative in Section 2.
• Clarifying that incomplete information about the employee’s List A, B, and C documents on the I-9 form is a substantive error, even if a copy of the document is retained. (Prior guidance treated incomplete information on the form as a “technical or procedural failure” if a copy of the documents had been retained).
• Stating that is a “substantive” violation to use remote verification procedures when not an active participant in EVerify, or registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program. It is also a substantive violation to fail to check the box indicating remote procedures when used.
• Including electronic I-9 systems’ failure to meet requirements as a substantive violation.

Because ICE will treat more errors as “substantive,” during audits, employers may be subject to more penalties without the chance to correct them. This could mean a higher penalty bill for I-9 paperwork violations.

What Should Employers Do?

Making sure your team is trained on how to fill out I-9 forms properly is more critical than ever to minimize mistakes and penalties. Employers should also consider an internal audit of I-9s: correcting errors before an audit can show employers’ good faith, which can in turn reduce penalties.

Have questions about I-9s?  CEA is here to help. Contact us today.