ICE Reclassifies Form I-9 Violations: What Employers Need to Know

U.S. Immigration and Customs Enforcement (ICE) recently revised its Form I-9 inspection fact sheet in a way that meaningfully increases employer exposure. The revised guidance is dated March 16, 2026, and was posted without formal notice or rulemaking. It reclassifies a wide range of errors that employers have historically been able to correct without penalty, treating them instead as substantive violations subject to immediate monetary fines.

This change affects every U.S. employer. We are sending this alert because the update is directly relevant to your workforce compliance obligations and warrants a prompt review of your current I-9 practices.

Background: The Technical vs. Substantive Framework

For nearly 30 years, I-9 paperwork violations have fallen into one of two categories:

• Technical or procedural violations, which are correctable within 10 business days of notice and generally do not result in a penalty; or
• Substantive violations, which are subject to immediate monetary penalties.

This framework is codified in federal law under INA Section 274A(b)(6) and has been interpreted through the 1997 Virtue Memorandum. It has shaped how employers structure internal audits, handle remediation, and respond to ICE inspections for decades. The revised fact sheet appears to significantly narrow the first category, and it does so without the formal notice-and-comment process that would ordinarily accompany a change of this scope.

What Changed: Newly Reclassified Violations

The following errors were previously treated as correctable technical violations. Under the revised guidance, they are now classified as substantive:

Section 1 (Employee Information)

Section 2 (Employer Review and Verification)

Form I-9 Supplements

Process-Based and Electronic I-9 Violations

A Key Carve-Out Has Been Eliminated

Among the most consequential changes is the removal of a longstanding interpretive rule that allowed employers to avoid penalties for missing document information, such as a document number or expiration date, when a legible copy of the document was retained with the I-9. Under the revised guidance, those same omissions are treated as substantive violations with no apparent exception, even when document copies are on file.

New Technical Violations

A number of new violations were defined and classified as “Technical” that had previously not been defined by ICE. These include:

1. Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed
2. Failure to ensure that an individual provides his or her other last names used (if any) or physical address in Section 1
3. Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security Number is correct
4. Failure to provide the business name, or physical business address in Section 2
5. Failure to record the employee’s complete name at the top of page 2, Supplement A, or Supplement B (as applicable)
6. Failure to record the employee’s new name (if applicable) in Supplement B

Legal Questions Worth Monitoring

The way this change was made raises legitimate legal questions. ICE updated a webpage without going through the formal rulemaking process that would ordinarily apply to a shift of this magnitude. Potential challenges that practitioners are already flagging include:

• Fair notice concerns: Employers have built compliance programs around the prior framework for decades, and retroactive penalty exposure based on a website update may be vulnerable to challenge.
• Administrative Procedure Act (APA): Substantive changes to enforcement policy are ordinarily implemented through formal rulemaking, not unannounced online updates.
• Reliance interests: Both OCAHO and federal courts have recognized and applied the prior framework in penalty proceedings, which may complicate efforts to enforce the new classifications retroactively.

These arguments may be available in future OCAHO proceedings, but employers should not treat the legal uncertainty as a reason to wait. The more prudent approach is to address known issues now.

Recommended Actions

• Review your I-9 audit protocols to identify errors that carry increased risk under the revised classifications, including issues that were previously considered low priority.
• Take stock of legacy I-9 forms. The federal five-year statute of limitations means errors going back several years may still fall within the penalty window.
• If your organization uses remote verification procedures or electronic I-9 systems, conduct a focused review of those workflows against the applicable regulatory requirements.
• Document your remediation efforts. Identifying and correcting errors before an inspection, and keeping a record of that process, remains one of the most effective tools for limiting penalty exposure.

Please feel free to reach out with any questions about how these changes may affect your organization. We are glad to assist with I-9 audits, remediation planning, and compliance program updates.