ICE Quietly Expands Employer Exposure in Updated Form I-9 Inspection Guidance

On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) updated its Form I‑9 inspection fact sheet in ways that significantly expand employer liability exposure. Although the update was not accompanied by a press release or formal rulemaking, it reflects a shift in how ICE classifies Form I‑9 errors—and how strictly those errors may be enforced during inspections.

At a high level, the revised fact sheet narrows the category of “technical or procedural” violations that may be corrected during an inspection and expands the list of “substantive” violations that can result in immediate fines. Many errors that employers have historically understood to be minor or curable are now explicitly identified as substantive paperwork violations.

What changed in ICE’s approach

Under federal regulations employers are permitted a correction period, usually 10 days, when ICE identifies technical or procedural Form I‑9 violations during an audit. Substantive violations, by contrast, may be penalized without an opportunity to cure. For decades, the dividing line between these categories was informed by internal ICE guidance and long-standing enforcement practice.

The updated fact sheet moves that line. ICE now lists numerous common completion errors as substantive violations, including issues that arise frequently in day‑to‑day onboarding.

For instance, from 2008 to 2009, a series of internal memos classified the following paperwork errors as technical:

• Failure to ensure that the individual dates Section 1 of Form I‑9 at the time employment begins
• Failure to list the date of hire in Section 2
• Failure to date Section 2 within three business days of the date employment begins
• Failure to provide the date of rehire in Section 3/Supplement B
• Use of the Spanish-language Form I‑9 outside Puerto Rico

Under that prior framework, the violations listed above would have been considered technical, and employers would have been afforded 10 days to correct them and, once corrected, those items no longer counted towards the final calculation of penalties.

Under the new 2026 framework, each of the items listed above is treated as a substantive violation subject to fines, without an opportunity to correct during an ICE audit.

Another stark difference between the old and new frameworks relates to incomplete forms when the employer copied and retained employees’ verification documents. Under the prior framework, if an employer did not record a document number, expiration date, and other required information in Section 2 of Form I‑9, but retained a legible copy of the document(s) with the Form I‑9, ICE treated that as a technical violation subject to the 10-day correction rule.

Under the 2026 framework, failure to properly record document information in the required Section 2 fields is automatically treated as a substantive violation, regardless of whether the employer retained copies of the verified documents. In other words, the revised guidance emphasizes that retaining copies of identity or work authorization documents may not mitigate errors if required fields on Form I‑9 itself are incomplete.

These are just a few examples of violations that ICE has reclassified from procedural or technical errors to substantive violations, in its March 16, 2026, fact sheet.

Heightened scrutiny of remote verification and electronic I‑9 systems

The March 2026 updated fact sheet also devotes increased attention to remote document examination and electronic Form I‑9 practices. ICE now explicitly treats certain remote-verification missteps as substantive violations, including failure to properly mark the “alternative procedure” checkbox in Section 2 or Supplement B.

In addition, ICE requires employers to be active E‑Verify participants or registered in a DHS non‑E‑Verify remote document examination program at the time the alternative procedure is used. A mismatch between E-Verify program status and how the Form I‑9 was completed may create audit and liability exposure.

ICE also signals a stronger enforcement posture toward electronic Form I‑9 systems. The March 16, 2026, fact sheet lists failure to meet regulatory requirements for electronic completion, audit trails, signatures, record security, and reproducibility as substantive violations. This places responsibility squarely on employers to ensure that third‑party Form I‑9 systems comply with DHS regulations, whether or not the system is widely used or commercially available.

Why this matters for employers

The practical effect of the updated guidance is that fewer errors qualify for a correction window once a government inspection begins. Because civil penalties are assessed on a per‑form basis, routine or repeated omissions can significantly increase financial exposure, particularly where error rates are high across a workforce.

Penalties for paperwork violations can be substantial, currently ranging from $288 to $2,861 per form, even if all employees are legally authorized to work. While good faith remains a statutory consideration, correcting errors only after ICE initiates an inspection may no longer be sufficient to avoid penalties for many common mistakes.

Steps employers should consider now

Given ICE’s revised framing, employers should reassess Form I‑9 compliance practices before an inspection occurs. This may include conducting internal audits of existing I-9s, and a review of existing I-9 protocols. Employers should also pay particular attention to remote verification practices by reviewing remote document examination workflows and E‑Verify status, and by confirming that electronic Form I‑9 systems meet DHS regulatory requirements.

The March 2026 update does not change the underlying statute, but it does change how ICE intends to enforce it. Employers who continue to rely on older assumptions about “fixable” errors may face greater risk during future audits.

If you have any questions regarding the Form I‑9 Employment Eligibility Verification process, or any other U.S. immigration-related questions, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.