Form I-9 Updates: ICE Sets Aside Many of the Prior Positions for Determination of Substantive and Procedural Errors

On March 16, 2026, the U.S. Immigration & Customs Enforcement (ICE) issued new rules regarding substantive and technical violations of Form I-9. These changes were made to ICE’s “Form I-9 Inspection Under Immigration and Nationality Act § 274A,” which is a longstanding fact sheet that lays out the I-9 inspection process. 

Since the enactment of the Immigration Reform and Control Act of 1986 (IRCA), U.S. employers have been required to verify the identity and employment authorization of all employees hired after November 6, 1986, by completing Form I‑9. ICE enforces this requirement via administrative inspections. An inspection begins with a Notice of Inspection (NOI), which requires employers to produce Forms I-9 and various employment-related documents. 

On page four of the updated fact sheet ICE lists 28 types of substantive violations, but did not distinguish between new substantive violations and those set forth in the “Virtue Memorandum” (formally the “Interim Guidelines: Section 274A(b)(6) of the Immigration & Nationality Act Added by Section 411 of the Illegal Immigration Reform & Immigrant Responsibility Act of 1996”) and ICE guidance of November 25, 2008 and July 13, 2009, which closely followed the dictates of the Virtue Memo. This will add confusion to the initial evaluations. 

The Virtue Memo was published on March 6, 1997, by the INS Acting Executive Commissioner of Programs, Paul W. Virtue. The Virtue Memo sets forth what the agency considers substantive Form I-9 errors subject to fines for violations, and correctable technical errors. Although the Virtue Memo was never promulgated into regulations, it has been followed by ICE and the Office of the Chief Administrative Hearing Officer (OCAHO) for the past 29 years. OCAHO has held that dissemination of the Interim Guidelines to the public may be viewed as an invitation for the public to rely upon them as representing agency policy and the government is so bound, and failure to follow its own guidance is grounds for dismissal of those claims. See, e.g., United States v. WSC Plumbing, Inc., 9 OCAHO no. 1071, 11-12 (2001).

New Substantive Violations 

Based on a comparison of the March 2026 fact sheet and the Virtue Memo, the following errors are now treated as substantive Form I-9 violations:

• 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 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; and
• Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation that falls short of specific DHS standards. 

New Technical Errors

Additionally, the fact sheet sets forth “new” technical errors, many of which were already widely considered technical errors but not specifically set forth in the Virtue Memo:

• 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; and
• Failing to provide the business address in Section 2.

What Does This Mean for Employers?

ICE has increased I‑9 audit activity in recent years, with industries such as construction, staffing, hospitality manufacturing, and retail seeing disproportionate enforcement attention. The reclassification of errors raises the stakes of inspections in an already aggressive enforcement environment.

The new substantive violations mean there will be much higher financial exposure for employers. For more than 25 years, immigration compliance attorneys have informed employers that specific violations, such as technical errors, do not require remediation prior to the start of an ICE I-9 audit, as ICE allows time to correct these errors during the audit process. However, these technical errors will now be classified as substantive violations and must be remediated before ICE issues their NOIs. 

By expanding the list of substantive violations, ICE has substantially reduced employers’ ability to avoid fines for routine administrative mistakes. For large employers with hundreds or thousands of I‑9s, the cumulative exposure can be substantial. 

The following are action items for employers:

1. Contact their immigration compliance attorney and request an internal I-9 audit. Even if one has been done in the last few years, employers should go back and review their audit results to determine whether previously identified technical errors that are now substantive violations were remediated after the audit.
2. If an employer uses an electronic I-9 system, it should ensure full compliance with federal regulatory requirements, including audit trails, indexing, and electronic signature standards.
3. Evaluate proper use of DHS-authorized alternative procedures and E-Verify enrollment, if applicable.
4. Avoid reliance on copies of documents to cure missing data on Forms I-9, as ICE no longer treats such errors as technical errors.
5. Retrain authorized representatives on proper I-9 completion requirements, emphasizing completeness of Sections 1 and 2, and Supplement B.

With the annual rise in the penalties soon to reach $300 to $3,000 per violation, and the above changes on what will be considered as substantive and subject to a fine, it’s vital for all employers to take the above steps to secure compliance.