On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) updated its Form I-9 Inspection Fact Sheet, expanding the categories of errors classified as substantive violations and potentially increasing employer liability. The update also reduces the availability of corrective measures during a Form I-9 inspection.
Form I-9 error classifications were previously governed by the 1997 U.S. Citizenship and Immigration Services (USCIS, then INS) Virtue Memorandum and subsequent agency guidance. The Virtue Memorandum distinguished between substantive violations, which are subject to monetary penalties, and technical or procedural violations, which employers could correct within a 10-day cure period and allowed employers to remedy some common mistakes without penalty.
What Changed
The updated Fact Sheet identifies 28 categories of substantive violations and reclassifies more than 10 error types previously treated as technical violations into the substantive category. Because the 10-day cure period applies only to technical violations, errors reclassified as substantive are no longer correctable.
Errors now classified as substantive include missing employee birth dates or immigration numbers in Section 1, omitted hire dates or employer representative information in Section 2, incomplete document information, and improper use of the Spanish-language form outside of Puerto Rico. ICE also eliminated the prior guidance that allowed employers to rely on retained document copies to cure certain Section 2 deficiencies.
The updated Fact Sheet further provides that procedural failures in connection with remote I-9 verification are substantive violations. Deficiencies in an employer’s electronic I-9 system — including failures involving I-9 audit trails, electronic signature protocols, or required security documentation under Department of Homeland Security (DHS) standards — are also classified as substantive violations.
This shift comes amid increased worksite enforcement activity and a recent rise in issued Notices of Inspection. Substantive violations carry civil penalties on a per-form basis, currently ranging from $288 to $2,861 per Form I-9, depending on the employer’s overall error rate.
Correcting errors after the fact does not eliminate liability. ICE considers good-faith compliance efforts when assessing penalties. Once a Notice of Inspection is issued, the opportunity to reduce exposure through remediation is limited. Employers with documented internal audit and remediation practices are generally better positioned in penalty assessments.
Form I-9 requirements apply to all U.S. employers, regardless of whether they employ foreign nationals. Every employee hired in the United States must have a properly completed Form I-9 on file.
