To err is human. To do so on an I-9 form will draw a fine from ICE. On March 17, 2026 Immigration and Customs Enforcement issued a new guidance to I-9 auditors that dramatically changes enforcement priorities. These changes raise the potential for monetary fines and enforcement action for paperwork errors that previously would have allowed for correction without fines.
The Immigration and Nationality Act requires U.S. employers to verify the employment authorization of every employee within three days of reporting to work. Employers use Form I-9 to discharge this obligation. The Department of Homeland Security’s Immigration and Customs Enforcement is charged with enforcing compliance with the law by auditing employer’s I-9 forms.
At the conclusion of an audit, ICE may find two kinds of violations: Technical and Substantive.
- Technical violations are typically minor violations and are remedied by correcting the form. ICE typically issues Notice of Correction for Technical violations.
- Substantive violations are paperwork errors that are so severe it appears that the employer failed to discharge its duty to verify an employee’s authorization to work in the United States. Fines from $288 to $2,861 per form and other enforcement actions typically follow Substantive violations.
On March 17, 2026, ICE revised its list of Substantive violations to include items that were previously considered Technical violations or not a violation.
These items include:
- An employee’s failure to provide their date of birth in Section 1;
- An employee’s failure to list an Alien Registration Number (as appropriate) in Section 1;
- Failure of the employee to record the date in Section 1 next to their signature;
- Use of Spanish-language I-9 form outside of Puerto Rico;
- Failing to record the name and title of the employer representative in Section 2 that verified the employee’s documents;
- Failing to fully record or incorrectly record the List A, B, and/or C documentation in Section 2, regardless of whether a copy of the document that was presented was retained;
- The employer’s failure to list the first day of employment in the Certification section;
- Failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on Form I-9 at the time of completion in Supplement A;
- The employer’s failure to check the alternative procedure box in Section 2 or Supplement B if remote document verification was used;
- Use of the remote document verification procedure by a non-E-Verify employer; and
- Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation that falls short of specific DHS standards.
Immigration enforcement is a priority for the Trump administration. Employers would be well served to review their I-9 forms for compliance with the new standards. Additionally, employers may wish to explore electronic I-9 management software. I-9 software (if programmed correctly to comply with existing standards) removes the potential for human error from the process. Employers with concerns about the state of their I-9 verification process and/or documentation are welcome to seek counsel with the author or other qualified and competent immigration counsel.
