For the first time in almost 30 years, U.S. Immigration and Customs Enforcement (ICE) has updated its Form I-9 inspection fact sheet. The changes were issued without any notice in the Federal Register, and there was no proposed rulemaking. The revisions replace many provisions of the 1997 Virtue memorandum, which governed compliance until now, and reclassified many common or technical errors as substantive violations. As a result, employers now face an increased risk of violations and penalties.
Background on Form I-9 and Inspections
The Immigration Reform and Control Act requires employers to verify the identity and employment authorization of all employees hired in the United States by properly completing and retaining Form I-9 for each employee. ICE, through Homeland Security Investigations (HSI), enforces compliance with Form I-9. Failure to comply can expose employers to significant civil penalties and, in certain circumstances, criminal liability.
An ICE inspection is typically initiated through the service of a notice of inspection (NOI), which compels the employer to produce Forms I-9 and supporting documentation within a short time frame—generally at least three business days. In addition to Forms I-9, ICE often requests supporting records like payroll data, lists of current and former employees, and corporate formation documents. Once the documentation is produced, HSI investigators review the materials for compliance, such as assessing whether forms were timely and properly completed and whether documentation appears valid and sufficient.
Errors fall into two categories: technical and substantive, as detailed in the Virtue memorandum. If ICE identifies technical or procedural deficiencies, employers are typically afforded at least 10 business days to correct them before penalties are assessed. However, this grace period isn’t afforded for substantive violations, which result in immediate liability.
Changes in Classifications for Certain Errors
The updated fact sheet changes many technical errors to substantive errors. General I-9 violations that had been technical but are now substantive include:
- Using a Spanish version of Form I-9 outside of Puerto Rico; and
- Not complying with electronic I-9 requirements.
Under Section 1—Employee information, the newly substantive errors are:
- Missing legal name or date of birth;
- Missing Alien Registration of U.S. Citizenship and Immigration Services (USCIS) number;
- Missing authorized-to-work date (anything in Box 4); and
- The employee’s failure to date.
Under Section 2—Employer verification, the following errors are now substantive:
- Incomplete or incorrect document information, including title, issuing authority, and expiration date;
- Failure to check the alternative procedures box when using remote document inspection;
- Missing name or title of authorized representative; and
- Missing date of hire.
This list only addresses errors in the main Form I-9 and not any of the supplemental forms, such as preparer’s certification or reverifications.
Importantly for employers, the changes also eliminate the document copy safe harbor rule, which allowed an employer that missed or incorrectly entered certain fields in Section 2, such as the expiration date, but had maintained a legible copy of the document to treat this as a correctable technical error, not a substantive error. This means any missing or incorrect document information for any list in Section 2 is now a substantive violation.
Employers should also be mindful of their document retention obligations. Forms I-9 must be retained for at least three years after the date of hire or one year after the date employment ends, whichever is later. Failure to retain required documentation can independently form the basis for penalties, even when employees are otherwise authorized to work and documentation was correctly completed.
Electronic/Remote Verifications
The updated fact sheet makes clear that any deficiencies in an employer’s electronic I-9 system are substantive errors. Some common deficiencies when using electronic verification include incomplete audit trails, failure to follow electronic signature protocols, and data security issues.
Employers using electronic I-9 systems should confirm enrollment in E-Verify and verify any electronic systems meet regulatory requirements, including the ability to produce legible and complete records and maintain appropriate audit trails.
Potential Penalties
You might be wondering if there’s any benefit to auditing and correcting I-9s if many errors are now substantive. The definitive answer is yes. Penalties for paperwork violations currently range from $288 to $2,861, and higher penalties are imposed for knowingly hiring or continuing to employ unauthorized workers. Penalties are adjusted annually, with the 2026 rates having been published on January 2, 2025.
With more errors classified as substantive, you should correct errors to trigger the five-year statute of limitations. For current employees, as long as there’s an employment relationship, any deficient or incorrect I-9 is a continuing violation. Courts have held that a paperwork violation begins at the time of the failure (so generally, the completion of the Form I-9) and continues until either the error is corrected or the statutory obligation to retain the form expires.
Once one of these events is triggered, the statute of limitations begins to run. So, assuming they’re correctly done and documented, correcting deficient I-9s and allowing five years to pass will eliminate any civil liability for those forms.
Next Steps for Employers
Given the heightened enforcement environment and the relatively short response timelines associated with an inspection, you’re strongly encouraged to take proactive steps to ensure compliance. You should consider conducting internal audits of your Forms I-9 to identify and correct errors in advance of any government inquiry, as well as implementing or updating standardized compliance policies to promote consistent and accurate completion practices across the organization.
Employees involved in the I-9 process should be retrained on policies and on properly completing Form I-9. You should also establish a clear protocol for responding to an NOI, including identifying responsible personnel and ensuring required documentation can be produced promptly within the three-day time frame.
Finally, you should consult with experienced legal counsel when responding to ICE notices or addressing complex compliance issues, particularly when questions arise regarding employee authorization or potential exposure to fines.
By taking these proactive measures, you can better position your company to respond effectively to an ICE inspection and reduce the risk of penalties.
Christina Nechiporchik is an attorney with Bodman PLC in Ann Arbor, Michigan, and can be reached at cnechiporchik@bodmanlaw.com.