On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) published a fact sheet that changes how many Form I-9 violations are classified.
Background
The Immigration Reform and Control Act (IRCA) requires employers to verify the identity and employment eligibility of their employees hired in the United States after November 6, 1986. The regulations that support IRCA make the Form I-9, the Employment Eligibility Verification form, the method of such verification.
Changes from Prior Guidance
Prior to the publication of the fact sheet by U.S. Citizenship and Immigration Services (USCIS), ICE used a memorandum published on March 6, 1997, known as the “Virtue Memo,” to classify Form I-9 violations into two categories: substantive or technical. The ICE fact sheet departs from the memorandum by classifying many additional types of Form I-9 errors as substantive violations. For example, an employee’s failure to list his or her date of birth in Section 1 of the Form I-9 or the employer’s authorized representative’s failure to date the signature in Section 2, which formerly were considered technical violations, are now substantive violations. This is a major concern for employers because substantive violations can lead to additional fines and employer exposure. For a full list of what ICE now considers a substantive violation, see the new fact sheet.
The Form I-9 administrative inspection process is initiated with the service of a Notice of Inspection by ICE, and employers have at least three business days to produce all Forms I-9 requested along with supporting documentation. The forms are then reviewed by ICE for compliance. Technical violations are minor and normally can be corrected during the I-9 inspection process, although they can become substantive violations if not fixed within 10 business days. Substantive violations are more serious, and there is no notification or correction period for such violations.
An employer may be issued a Notice of Intent to Fine (NIF) for substantive violations. In determining the fine amount, ICE generally considers the number of substantive violations divided by the number of Forms I-9 that should have been presented for inspection. This “violation percentage” is then used by ICE to determine the civil penalty base fine amount to be assessed. This base fine amount can then be enhanced, mitigated, or deemed neutral by five statutory factors: (1) size of the business; (2) good faith of the employer; (3) seriousness of the violations; (4) involvement of unauthorized workers; and (5) history of violations.
Recommendations
Here are some practical steps employers can take to make sure they are compliant with this new Form I-9 guidance:
- Review the new fact sheet. Educate yourself on what has changed and understand the potential implications.
- Review your Forms I-9. Conduct an internal audit of your existing Forms I-9. Identify and correct any errors.
- Train your personnel. Make sure the personnel responsible for completing your Forms I-9 are knowledgeable about the process and are committed to doing it right.
At the end of the day, compliance is key!
