Graham Adair Perspective
We are advising clients to treat this development as a meaningful tightening of I-9 enforcement standards rather than a routine policy update. While ICE has not issued entirely new regulations, its revised guidance signals a more aggressive posture in how existing rules will be applied during audits. Employers should assume that errors previously viewed as low-risk may now carry greater financial exposure and should prioritize proactive compliance accordingly.
Overview
U.S. Immigration and Customs Enforcement (ICE) has issued updated guidance that may increase employer risk during Form I-9 inspections. In March 2026, ICE revised its long-standing inspection fact sheet and clarified its interpretation of what constitutes “substantive” violations—meaning certain errors may be treated as immediately subject to monetary penalties rather than eligible for correction. This development represents a meaningful shift in I-9 compliance enforcement and raises the stakes for employers across all industries.
Background: The Prior Framework
Since the 1990s, I-9 violations have generally been divided into two categories:
- Substantive violations – serious errors potentially impacting employment eligibility and subject to fines;
- Technical or procedural violations – administrative errors that employers are typically permitted to correct within at least 10 business days after notice of an inspection.
This distinction has historically provided employers with a limited opportunity to cure certain deficiencies identified during an audit.
What Changed
ICE’s revised guidance narrows the scope of what may be considered a “technical” violation. As a result, certain errors that were treated as correctable may now be treated as substantive violations, depending on the circumstances. This shift increases the likelihood that employers could face monetary penalties without an opportunity to cure certain deficiencies identified during an inspection. Examples of errors that may be treated as substantive include:
- Missing key data fields such as date of birth or date of hire;
- Failure to properly complete or date required sections of the form;
- Incomplete preparer/translator certification (where applicable);
- Missing employer representative information in Section 2;
- Improper use of the Spanish-language form outside Puerto Rico;
- Failure to record required document information in Section 2;
- Missing rehire dates or certification details, where required.
Importantly, ICE continues to emphasize that Form I-9 must be complete and accurate on its face, and the presence of corrected information in supporting documents does not necessarily cure deficiencies on the form itself.
Expanded Risk Areas
The updated guidance also increases exposure in several evolving compliance areas:
- Remote Verification Procedures: Errors related to remote document inspection procedures, such as failure to properly follow DHS-authorized alternative procedures or related E-Verify requirements, may increase compliance risk and could be treated as substantive violations in certain cases.
- Electronic I-9 Systems: ICE continues to scrutinize electronic I-9 systems. Deficiencies in audit trails, electronic signatures, or system integrity may result in violations, including potentially substantive violations depending on the severity.
- Documentation Accuracy Over Time: ICE has reinforced that compliance is assessed based on the form as completed at the time of hire. While corrections are still permitted in appropriate circumstances, errors may not be fully mitigated if the original form was materially deficient.
Enforcement Environment and Penalties
These changes come amid continued federal worksite enforcement activity, with I-9 inspections remaining a primary enforcement tool. Current civil penalties (adjusted annually) generally include:
- Approximately $288 to $2,861 per Form I-9 for paperwork violations;
- Up to approximately $28,619 per violation for knowingly employing unauthorized workers.
Because penalties are assessed on a per-form basis, even routine errors can result in significant aggregate exposure.
Key Takeaways for Employers
First, the margin for error in I-9 compliance is narrowing. Second, errors previously viewed as minor may carry increased enforcement risk. Third, employers should not rely on post-inspection correction opportunities as a primary compliance strategy. In short, accuracy at the time of I-9 completion is increasingly critical.
Recommended Next Steps
Employers should consider taking the following actions:
- Conduct a proactive internal I-9 audit to identify and address errors, with particular focus on completeness and accuracy;
- Retrain HR personnel and hiring managers to reinforce proper completion of all required fields, dates, and certifications;
- Review electronic I-9 systems and confirm compliance with DHS requirements for audit trails, signatures, and recordkeeping;
- Evaluate remote verification procedures to ensure alignment with DHS-authorized alternative procedures and E-Verify requirements;
- Strengthen onboarding controls and implement standardized processes to improve accuracy at the point of hire.
Conclusion
ICE’s updated guidance reflects a stricter enforcement posture with respect to Form I-9 compliance. Employers that have historically relied on the ability to correct minor errors after an inspection may face increased exposure under this updated framework. Given the current enforcement environment, organizations should prioritize proactive compliance efforts to mitigate risk. If an I-9 audit is conducted, fines can add up fast.