ICE Changes Direction on “Technical” v. “Substantive” I-9 Violations
As of March 16, 2026, ICE significantly tightened Form I-9 enforcement, reclassifying many previously “technical” errors as “substantive” violations, removing the 10-day cure period for corrections. These changes immediately increase liability, with fines ranging from $288 to more than $2800 per form. This means that what ICE formerly regarded as minor, correctable errors may now be met with severe penalties.
ICE I-9 Penalty Policy Changes
- Substantive Reclassification: Numerous common administrative errors—previously seen as correctable—are now deemed substantive, meaning they cannot be corrected after a Notice of Inspection (NOI) is received.
- No 10-Day Cure Period: For these reclassified errors, employers lose the automatic 10-day window to correct mistakes.
- New Substantive Violations:
- Missing birth dates, hire dates, or employee signatures.
- Failure to record identification document information (List A, B, or C).
- Missing employer/representative title, name, or address.
- Use of the Spanish-language Form I-9 outside of Puerto Rico.
- Increased Audit Risk: Merely keeping copies of employees’ documents does not remedy a failure to record them properly on the form itself.
- You can review the March 16, 2026 ICE Fact Sheet here
- You can read analysis from national employer-side law firm Morgan Lewis here.
Actions You Can Take:
- Self-Audits: Conduct immediate, voluntary internal audits of all I-9 forms to identify and correct errors before receiving an NOI.
- Train Personnel: Ensure HR teams are aware that minor omissions now result in high fines.
FELS members can access valuable information about Form I-9 compliance at FELS Resources: Immigration & Hiring: Immigration & Hiring Checklists for FELS’ Self-Audit Checklist and ICE Workplace Visit Checklist, as well as general information about hiring and I-9 requirements at Immigration Law, Hiring, & Employment. (NOTE: these FELS resources are found behind the FELS website paywall, and are accessible to FELS members with a valid website user account.)
