Form I-9 Substantive Violations Expanded in March 2026: ICE Changes and Employer Penalties

On March 16, 2026, US Immigration and Customs Enforcement (ICE) updated its Form I-9 Inspection fact sheet and reclassified more than 10 common technical violations as substantive violations.

US Immigration and Customs Enforcement (ICE) released new rules pertaining to substantive violations and technical errors in Form I-9 in March 2026. The revisions were made to Form I-9 Inspection Under Immigration and Nationality Act § 274A, a fact sheet that details the I-9 inspection process.

Employers should be aware that ICE has reclassified more than 10 common employer errors, effectively converting them from technical violations into substantive violations that carry immediate fines of $288 to $2,861 per form. ICE did not issue a Federal Register notice or public announcement regarding these changes.

Background on Form I-9 before March 2026

Under the Immigration Reform and Control Act of 1986 (IRCA), employers have been required to verify the identity and employment authorization of employees hired from November 6, 1986, onward. Form I-9 has been used for this verification, and ICE has enforced the requirement through administrative inspections that are initiated through a Notice of Inspection (NOI).

In March 1997, a document referred to as the “Virtue Memo” was issued by Paul Virtue, Immigration and Naturalization Services’ acting executive commissioner of programs. The memo laid out Form I-9 errors that were subject to fines, as well as technical errors. ICE has followed this memo since its publication in 1997, even though it is not an official regulation.

However, on the updated fact sheet, ICE lists 28 types of substantive violations, but does not distinguish between these new violations and those of the older Virtue Memo as well as ICE guidance from 2008 and 2009, which is generally aligned with the Virtue Memo. With this overlap and lack of clarity, employers may struggle, at least initially, to understand how things have changed.

What are Form I-9 substantive violations?

According to Littler, the Virtue Memo and ICE’s recently issued fact sheet, when compared, create a set of errors that should now be considered substantive Form I-9 violations. They are:

• Failure to ensure an employee provides date of birth (DOB) in Section 1
• Failure to ensure an employee provides their USCIS number in Section 1
• Failure to record a date in Section 1 next to employee signature
• No expiration date listed in Section 1, Box 4, regardless of whether such expiration date is listed in Section 2, List A, and/or the Employment Authorization Document (EAD)
• Use of Spanish-language I-9 outside of Puerto Rico 
• Missing name and title of the employer representative 
• List A, B, or C data not fully recorded/incorrectly recorded in Section 2, such as name of document, number of document, issuing authority, or expiration date, regardless of whether a copy of an underlying document, such as a green card or driver’s license, was retained
• Failure to provide the first day of employment in the Certification
• 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
• When utilizing remote verification procedure, the employer representative fails to check the alternative procedure box in Section 2 or Supplement B indicating that remote inspection was used and/or is not an active E-Verify participant when using the alternative procedure
• Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation that falls short of specific DHS standards

What are Form I-9 technical errors?

The ICE fact sheet also provides a list of “new” technical errors that employers already recognize as technical errors, even though they were not included in the Virtue Memo. They are:

• If an employer is enrolled in E-Verify, failing to ensure that the employee’s Social Security Number is listed and correct in Section 1
• Failing to record the employee’s complete name at the top of page 2, if applicable, at the top of Supplement A, or at the top of Supplement B
• Failing to ensure that an employee provides their other last names used, if any 
• Failing to record an employee's new name, if applicable, in the appropriate section of Supplement B during reverification
• Failing to use the version of Form I-9 that was current at the time the form was initially completed
• Failing to ensure an employee provides an address in Section 1
• Failing to provide the business address in Section 2

Did ICE eliminate the 10-day I-9 correction window?

ICE eliminated the 10-day correction window for the technical errors now reclassified as substantive violations. The 10-business-day correction period under INA 274A(b)(6)(B) still applies to errors that are technical, but substantive violations are subject to an immediate fine with no opportunity to cure during the audit. Employers must identify and fix these errors before an I-9 audit begins, not during it.

Administrative mistakes that were not penalized previously may now carry fines. For large employers, these fines could be substantial.

Source: Littler, PR Newswire, ICE