ICE Rewrites the I-9 Rulebook: Employers Face Immediate Fines for Common Paperwork Errors
Author: Alejandra Pasillas
May 18, 2026
U.S. Immigration and Customs Enforcement (ICE) recently updated its Form I-9 inspection guidance that redefines what constitutes a “substantive” violation on Forms I-9. This change marks a significant departure from ICE’s long-established guidance. Since 1997, the federal government split I-9 paperwork violations into two categories, substantive violations and technical or procedural violations for administrative or clerical mistakes that could easily be corrected. The newly revised guidance updates these longstanding definitions and reclassifies many clerical errors previously considered minor “technical” mistakes as “substantive errors,” which will now lead to immediate fines during an audit.
THE UPDATE IN BRIEF
ICE updated its Form I-9 Inspection fact sheet on March 16, 2026, reclassifying more than ten common employer errors from “technical” to “substantive.” The updated fact sheet eliminates the 10-day correction window for many clerical errors.
The following provides a summary of the errors identified in the new fact sheet, organized by form section and violation type:
General Form Violations:
Substantive Violations:
• Failure to prepare the Form I-9.
• Failure to produce the Form I-9 for inspection upon request.
• Failure to ensure timely completion of Form I-9.
• Improper Spanish-language form use outside Puerto Rico.
• Failure to meet electronic Form I-9 standards.
Technical/Procedural Violations:
• Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed.
• Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security Number is correct.
Section 1 – Employee Information and Attestation Form Violations:
Substantive Violations:
• Failure to ensure employee completes legal name and date of birth.
• Failure to ensure that employee completes citizenship/immigration status attestation.
• Failure to ensure employee completes required alien registration, USCIS, I-94, passport, or work authorization information.
• Failure to ensure employee signs the section.
• Failure to ensure employee dates the section.
Technical/Procedural Violations:
• Failure to ensure that employee provides other last names used (if any) or a physical address. A missing email address or phone number will not constitute a violation.
Section 2 – Employer Review and Verification Form Violations:
Substantive Violations:
• Failure to timely examine acceptable documents within three business days following the date of hire.
• Failure to record document title, issuing authority, document number, or expiration date of acceptable documents.
• Failure to record document title, issuing authority, document number, or expiration day of replacement document information.
• Failure to check the alternative procedure box when remote examination was used.
• Improper use of the alternative procedure box without required DHS/E-Verify participation.
• Failure to complete employer representative name, title, signature, date, or employee hire date in the section.
Technical/Procedural Violations:
• Failure to record the employee’s complete name at the top of page 2.
• Failure to provide the business name, or physical business address.
Supplement A – Preparer/Translator Form Violations:
Substantive Violations:
• Failure to provide preparer or translator name, address, signature, or date when assistance was used.
Technical/Procedural Violations:
• Failure to record the employee’s full name at the top of Supplement A.
Supplement B – Reverification/Rehire Form Violations:
Substantive Violations:
• Late reverification.
• Failure to examine acceptable reverification documents.
• Failure to record rehire date.
• Failure to record document title, document number(s), or expiration date of an acceptable document.
• Failure to record document title, document number(s), or expiration date of an acceptable replacement document.
• Failure to record employer representative name, signature, or date.
• Failure to check the alternative procedure box when applicable.
• Improper alternative-procedure use without required DHS/E-Verify participation.
Technical/Procedural Violations:
• Failure to record the employee’s full name at the top of Supplement B.
• Failure to record the employee’s new name (if applicable) in the applicable section.
WHY THIS MATTERS?
For Employers:
• Many of the most common errors found in routine audits now fall under ICE’s expanded substantive classification.
• Fines are calculated based on the percentage of violations found during an audit and can be aggravated by factors like business size and history of previous violations.
For HR Directors:
• Forms you believe are complete may still contain newly reclassified substantive violations. Your current audit checklists may not reflect the March 2026 changes.
• Accurate and timely intake procedures on day-one matter. Late or incomplete entries create violations that carry no opportunity to cure. The “good faith” defense is harder to maintain.
For Hiring Managers:
• Day-one onboarding timing matters. You must coordinate closely with HR to ensure timely form completion and document review.
• An ICE audit can disrupt operations and require rapid internal coordination. Informal hiring practices and shortcuts increase compliance risk and expose the company to penalties.
BEST PRACTICES GOING FORWARD
Conduct an internal I-9 audit now.
Review your existing forms against the March 2026 substantive violation list before ICE does. Errors that remain in the “technical” category can still be corrected proactively; newly reclassified errors on open forms may be addressable through permissible self-audit corrections.
Update your I-9 completion checklists and training materials.
Ensure every person who completes or reviews I-9 forms in your organization understands the new substantive categories.
Audit your electronic I-9 platform.
If you use a commercial HR system to generate or manage I-9 forms, verify that its logic and validation settings reflect the new requirements. Do not assume your vendor has updated its system.
Purge expired I-9 records on schedule.
Retain forms only for three years after hire or one year after termination, whichever is later. Excess records increase audit risk.
Review your remote verification procedures.
If your organization uses DHS-authorized alternative procedures for remote document examination, confirm that staff check the Alternative Procedure box and follow all required steps.
Seek legal assistance.
If you are uncertain about your organization’s compliance, proactively seek legal guidance before you receive a Notice of Inspection. Or if you just received a Notice of Inspection and are worried about potential compliance gaps, obtaining legal guidance can help you respond effectively and minimize risk.
THE BOTTOM LINE
ICE’s March 2026 guidance change is a significant shift in enforcement posture. Errors that employers have been allowed to fix for nearly 30 years now result in automatic fines. The change arrived without formal notice, without a public rulemaking process, and without any transition period. Given that research shows error rates above 75% even for employers using electronic I-9 systems, virtually every business with an I-9 obligation faces material financial exposure right now. Acting before ICE issues a Notice of Inspection is the only way to control that risk. Thus, businesses must shift from a “correct-on-demand” approach to a proactive compliance model to avoid heavy penalties and potential administrative proceedings.
HOW WE CAN HELP
ScottHulse’s Labor and Employment team has extensive experience guiding Texas and New Mexico employers through I-9 compliance training, internal audits, and ICE inspection response. We can review your existing I-9 forms and practices, identify exposure under the new substantive violation standards, assist with permissible self-audit corrections, and represent your business if ICE initiates an inspection. Contact us today to ensure your business is prepared for the potential impact of these significant changes.
This information is provided for general informational purposes only and should not be construed as legal advice. Consult with an attorney for specific guidance on how this may affect your business. This material is provided for informational purposes only. It is not intended to constitute legal advice, nor does it create a client-lawyer relationship between ScottHulse and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material.
