Quiet Change, Serious Consequences: ICE Expands Form I-9 Substantive Violations for Employers

U.S. Immigration and Customs Enforcement (ICE) quietly issued updated guidance in March that materially changes how Form I‑9 violations are classified. ICE revised its long-standing Form I‑9 fact sheet to reclassify numerous errors that had historically been treated as correctable technical violations as substantive violations subject to monetary penalties, which significantly increases exposure to fines and enforcement risk for routine Form I‑9 compliance errors.

Background on Form I-9 Compliance

Under the Immigration Reform and Control Act, U.S. employers are required to verify the identity and employment authorization of all individuals hired after November 6, 1986, by completing an Employment Eligibility Verification form (Form I-9). ICE enforces this requirement through administrative inspections initiated by a Notice of Inspection (NOI), which requires employers to produce Forms I‑9 and related employment records for review.

The classification of Form I‑9 errors since March 6, 1997, has been guided by the Virtue Memorandum, issued by U.S. Citizen and Immigration Services (USCIS) (formerly, Immigration and Naturalization Services) Acting Executive Commissioner for Programs Paul Virtue. The memorandum distinguishes between substantive violations (which carry civil penalties) and technical or procedural errors that employers are permitted to correct within a defined cure period. Although the Virtue Memorandum was never formally codified, ICE and the Office of the Chief Administrative Hearing Officer have consistently relied on its framework for decades. The March 2026 guidance marks a significant departure from this long-standing approach.

What This Means for Employers

These changes significantly increase employer exposure during Form I‑9 audits by eliminating the correction period for many of the most common paperwork errors. For decades, employers were advised that certain administrative deficiencies could be corrected after ICE issued an NOI. Under ICE's updated guidance, many of those same errors now trigger immediate liability. ICE has also increased Form I‑9 enforcement activity in recent years. For employers with large workforces, even modest error rates can result in substantial penalties when multiplied across hundreds or thousands of Forms I‑9.

Further narrowing available defenses, ICE now makes clear that retaining copies of identity or work authorization documents does not cure missing or incomplete information on Form I‑9. To assist employers in assessing compliance risk, this Holland & Knight alert includes a comprehensive checklist identifying all substantive and technical Form I‑9 violations set forth in ICE's March 2026 fact sheet, with newly expanded or emphasized substantive violations clearly identified.

Recommended Actions for Employers

In light of ICE's updated guidance and heightened enforcement activity, employers should consider taking proactive steps to evaluate and strengthen their employment eligibility verification practices, particularly in areas where compliance risk has increased.

• Conduct a Comprehensive Review of Forms I‑9: Employers should reassess the completeness and accuracy of Forms I‑9 currently on file, including those previously reviewed during internal audits. This review should focus on deficiencies now classified as substantive, as well as identify systemic issues through periodic spot check reviews of newly completed forms.
• Provide Updated Training to Personnel Responsible for Form I‑9 Compliance: Employers may wish to retrain authorized representatives and other personnel responsible for Form I‑9 completion, reverification and rehire documentation, with an emphasis on accuracy, timeliness and completeness across all sections and supplements.
• Strengthen Internal Form I‑9 Governance and Escalation Processes: Employers may wish to establish clear procedures for identifying, escalating and resolving Form I‑9 issues, including documenting good faith compliance efforts such as audits, corrective actions and training.
• Evaluate Electronic Form I‑9 Systems and Related Controls: Employers using electronic Form I‑9 platforms should confirm compliance with U.S. Department of Homeland Security (DHS) requirements governing audit trails, indexing, electronic signatures, record retention and data security and periodically reassess system functionality as requirements evolve.
• Confirm Compliant Use of DHS‑Authorized Remote Verification Procedures: Employers utilizing alternative document inspection procedures should verify continued eligibility, ensure required notations are properly completed on Form I‑9, and confirm ongoing enrollment in E-Verify or another applicable DHS‑authorized program.
• Avoid Reliance on Document Retention to Cure Errors: Employers should not rely on retained copies of identity or work authorization documents to address missing or incomplete Form I‑9 entries, as document retention does not substitute for proper form completion.
• Review Form I‑9 Practices Following Organizational Changes: Employers should assess Form I‑9 compliance risks associated with mergers, acquisitions, restructurings or workforce integration, including proper handling of legacy Forms I‑9 and inspection readiness planning.

Comprehensive Form I‑9 Checklist: Substantive Versus Technical Errors Under March 2026 Guidance

The checklist below summarizes the substantive and technical Form I‑9 violations identified in ICE's March 2026 Form I‑9 Inspection fact sheet. An asterisk (*) identifies violations that are understood to reflect reclassification as substantive under ICE's updated guidance.

Global Form I‑9 Violations (Substantive Violations)

• failing to complete a Form I‑9 for an employee
• failing to provide a completed Form I‑9 when requested during an inspection
• not completing Section 1 and/or Section 2 on time or Supplement B when required
• using the Spanish‑Language Form I‑9 outside of Puerto Rico*
• not complying with requirements for electronic Form I‑9 systems, including rules for completion, record retention, audit trails, electronic signatures, system security and required documentation*

Section 1: Employee Information (Substantive Violations)

• missing employee's legal name or date of birth*
• employee checks more than one citizenship or immigration status box
• missing Alien Registration Number (A Number) or USCIS number for lawful permanent residents*
• missing required information for employees authorized to work until a specified date (Box 4), including Alien Registration Number (A Number) or USCIS number, I‑94 number and work authorization expiration date*
• failure of employee to sign Section 1
• failure of employee to date Section 1*

Section 1: Employee Information (Technical Errors)

• use of an incorrect or outdated Form I‑9 edition at time of initial completion*
• missing "other last names used" (if any) or physical address (email and telephone number remain optional)*
• incorrect or missing Social Security number in Section 1 for E-Verify employers*

Section 2: Employer Verification (Substantive Violations)

• failure to physically examine acceptable List A or List B and List C documents within three business days of hire
• incomplete or incorrect recording of document title, issuing authority, document number or expiration date, even if document copies are retained*
• failure to properly complete receipt and replacement document procedures
• failure to check the alternative procedure box when using authorized remote document inspection procedures*
• use of alternative procedures without being properly enrolled in E-Verify or another DHS‑authorized program
• missing name or title of the employer or authorized representative*
• missing date of hire in the Section 2 attestation*
• failure to sign the Section 2 certification
• failure to date the Section 2 certification

Section 2: Employer Verification (Technical Errors)

• missing employee name at the top of page 2*
• missing employer's business name or physical address*

Supplement A: Preparer and Translator Certification (Substantive Violations)

• failure to include preparer or translator's complete name, address, signature and date at the time Section 1 is completed*

Supplement A: Preparer and Translator Certification (Technical Errors)

• missing employee name at the top of Supplement A*

Supplement B: Reverification and Rehire (Substantive Violations)

• failure to timely complete reverification before employment authorization expires
• failure to provide rehire date when required
• failure to properly record document information, including document title, document number, and/or expiration date (if any) during reverification
• failure to complete receipt replacement requirements
• failure of employer or authorized representative to print name, sign and date Supplement B
• failure to check the alternative procedure box when remote inspection is used*
• use of alternative procedures without proper enrollment in E‑Verify or another applicable DHS program*

Supplement B: Reverification and Rehire (Technical or Procedural Errors)

• missing employee name at the top of Supplement B*
• failure to record employee's new legal name during reverification*

Conclusion

With civil penalties reaching several thousand dollars per violation and many formerly correctable errors now treated as substantive violations, the risk of noncompliance has increased significantly. Employers should act promptly to review existing Forms I‑9, address deficiencies and update internal compliance practices before an ICE inspection exposes them to avoidable penalties.

For more information on this matter, please contact the author or a member of Holland & Knight's Immigration, Nationality and Consular Team.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.