On March 16, 2026, Immigration and Customs Enforcement (ICE) updated its Form I-9 inspection fact sheet by recategorizing numerous I-9 errors to expand the number of violations that may result in fines. The change—made without any notice or rulemaking effort—marks a significant change in I-9 enforcement policy and significantly increases the potential for large fines and penalties for employers—even for minor and easily correctable errors on their I-9 forms.
Some Errors Now Reclassified as Substantive
Since 1997, ICE has adhered to the “Virtue Memorandum,” which divides I-9 errors into two categories: substantive violations and technical/procedural violations. Substantive violations are subject to a fine. For technical and procedural violations, an employer has usually been afforded a 10-business-day cure period to correct the error before any fine is applied. The new fact sheet, however, reclassifies many technical violations or procedural violations as substantive violations. These errors will now be subject to monetary penalties.
These new “substantive” errors include:
- Missing employee date of birth, A-Number/USCIS number, I-94 number, or work authorization expiration date in Section 1;
- Missing “other last names used” or physical address in Section 1;
- Incorrect/missing Social Security number for E-Verify employers;
- Incomplete List A/B/C document information in Section 2 (title, number, expiration);
- Missing the first day of employment in the certification;
- Incomplete preparer/translator data in Supplement A;
- Failure to check the “alternative procedure” box for remote verification, or using remote verification without being an active E-Verify participant;
- Deficiencies in electronic I-9 systems (audit trails, e-signatures, security documentation under Department of Homeland Security standards); and
- Use of the Spanish version of the form for employers outside of Puerto Rico.
Under prior guidance and practice, keeping copies of the documentation from the employee helped to offset issues with information missing from a required field in Section 2. The new fact sheet removes this protection. A fine is likely to result even if the document provided is maintained with the form.
Likely, additional technical violations appear to be a missing Social Security number (assuming the employer isn’t using E-Verify), a missing employee name on page 2, a missing employer business address in Section 2, and a missing “other last names used.” It remains to be seen how the change in policy will be applied by the various field offices.
Employer Liability and What You Can Do Now
With this change, the risk of greater civil penalties has significantly increased. Current civil penalties for I-9 paperwork violations, under 8 C.F.R. § 274a.10(b)(2), range from $288 to $2,861 per form. This penalty range is adjusted annually for inflation. Because fines are assessed per form, the amount of a penalty will rapidly increase—a company with 100 I-9s containing errors that were previously treated as merely technical could now face penalties in the range of $28,000 to $286,100, excluding any possible knowing-hire or continuing-to-employ violations, which carry much higher penalties. ICE uses a metric to score violations, which includes potential multipliers, as well as mitigation factors that an employer may assert.
Although questions remain about the extent to which the new policy will be enforced administratively, the change is a red flag for employers with respect to their I-9 compliance programs. You are strongly encouraged to review your own I-9 compliance programs and to audit your compliance to identify potential issues now before you are visited by someone from ICE or Homeland Security Investigations bearing a notice of inspection.
You should also review your remote-verification processes (E-Verify users only) and ensure that electronic storage systems, if used, meet regulatory standards. Please reach out to Whiteford’s employment law team with any questions on this important issue.
Peter D. Guattery is an attorney with Whiteford, Taylor & Preston, L.L.P., in Towson, Maryland, and can be reached at pguattery@whitefordlaw.com.