The U.S. Immigration and Customs Enforcement (ICE) revised its Form I-9 Inspection Under Immigration and Nationality Act § 274A Fact Sheet on March 16, 2026. The revision materially expands the types of Form I-9 errors classified as substantive violations.
This change increases the financial risk associated with routine administrative omissions. Many errors previously treated as technical or procedural deficiencies are now subject to immediate civil penalties. Employers do not receive the standard 10-business-day correction period for substantive violations.
The revised guidance requires employers to review their I-9 compliance procedures, conduct proactive self-audits, and retrain the personnel responsible for completing and retaining Forms I-9.
Important: This article provides general information. It does not constitute legal advice for a specific employer, workforce, or Form I-9 record.
What Changed in the March 16, 2026 ICE Fact Sheet?
Federal law requires employers to verify the identity and employment authorization of individuals hired in the United States after November 6, 1986. Form I-9 is the required record of that verification process under 8 C.F.R. § 274a.2.
ICE’s revised Fact Sheet identifies a broader list of omissions and failures as substantive violations. These violations can support a Notice of Intent to Fine without a prior opportunity to cure the error.
The distinction between violation categories is now critical:
- Technical or procedural violations generally provide the employer at least 10 business days to make corrections after ICE identifies the errors.
- Substantive violations are subject to civil penalties without that 10-business-day cure period.
- A correction made after an inspection does not necessarily eliminate the original substantive violation or the associated penalty exposure.
The complete ICE Form I-9 Inspection Fact Sheet should be reviewed when developing an employer’s compliance procedures.
Penalties for Substantive Form I-9 Violations
Under 8 C.F.R. § 274a.10(b)(2), civil penalties for employment verification paperwork violations occurring after November 2, 2015, range from $288 to $2,861 per affected individual or Form I-9.
The penalty amount depends on several statutory factors, including:
- The size of the employer’s business.
- The employer’s good-faith compliance efforts.
- The seriousness of the violation.
- Whether the matter involves an unauthorized worker.
- The employer’s history of previous violations.
Because penalties are assessed on an affected Form I-9 or individual basis, a recurring error across a large workforce can create significant financial exposure. An electronic system configuration error, for example, may affect hundreds of forms produced through the same process.
Employers must also distinguish paperwork violations from knowingly hiring or continuing-to-employ violations. The latter carry separate and potentially higher penalties.
Errors That Are Now Substantive Violations
The revised Fact Sheet identifies several omissions that employers must address immediately during internal reviews.
Section 1: Employee Information and Attestation
The following Section 1 failures are treated as substantive violations:
- Missing the employee’s date of birth.
- Missing the employee’s legal name.
- Failing to select one required immigration status attestation box.
- Missing the required Alien Registration Number, USCIS Number, or Form I-94 Admission Number when applicable.
- Missing the required foreign passport information and employment authorization expiration date when applicable.
- Missing the employee’s signature.
- Missing the date next to the employee’s attestation.
The employee generally must complete Section 1 no later than the first day of employment. Employers should verify that Section 1 is complete before proceeding with the employer verification process.
Section 2: Employer Verification and Certification
The following Section 2 omissions are now substantive violations:
- Missing the document title.
- Missing the issuing authority.
- Missing the document number.
- Missing the document expiration date, when applicable.
- Missing the employee’s first day of employment in the certification block.
- Missing the employer representative’s complete name.
- Missing the employer representative’s title.
- Missing the employer representative’s signature.
- Missing the date of the Section 2 certification.
- Failing to complete Section 2 within the required timeframe.
- Failing to mark the alternative procedure box when an authorized remote document examination procedure was used.
The revised guidance also treats incomplete List A, List B, or List C document information as substantive even when the employer retained copies of the documents.
Document retention does not replace the obligation to complete the required Form I-9 fields. A retained copy may demonstrate that documents were presented, but it does not correct missing or incomplete entries in Section 2.
Remote Document Examination and the Alternative Procedure
Employers using remote document examination must follow the applicable Department of Homeland Security requirements. The employer must be authorized to use the alternative procedure and must satisfy the applicable program conditions.
ICE identifies the following failures as substantive violations:
- Using remote document examination without active E-Verify participation when active E-Verify participation is required.
- Using the alternative procedure without proper enrollment in an authorized DHS program.
- Failing to mark the alternative procedure box in Section 2.
- Failing to retain the documentation required by the applicable remote verification procedure.
Employers must not assume that video meetings, document uploads, or remote onboarding tools independently authorize remote Form I-9 document examination. The employer must confirm that its process satisfies current DHS requirements.
HR departments should document:
- The employer’s E-Verify participation status.
- The date the employer enrolled or began using the applicable procedure.
- The remote examination steps used.
- The documents examined.
- Required copies and supporting records.
- The employee’s live interaction with the authorized representative or employer representative.
Electronic Form I-9 System Deficiencies
Electronic Form I-9 systems must satisfy the standards established in 8 C.F.R. § 274a.2. The revised Fact Sheet specifically identifies deficiencies involving:
- Audit trails.
- Electronic signature protocols.
- Record security.
- Data integrity.
- Documentation of system controls.
- Reproduction of legible and readable copies.
- Retention and accessibility of Forms I-9.
Employers remain responsible for the compliance of the electronic system they use. Reliance on a third-party vendor does not eliminate the employer’s legal obligations.
An employer should obtain and review documentation showing that its system:
- Records who created, accessed, or changed a Form I-9.
- Preserves an audit trail for each modification.
- Uses compliant electronic signatures.
- Protects records against unauthorized access or alteration.
- Produces legible copies for inspection.
- Maintains required security and integrity documentation.
A system review should be part of every comprehensive workforce compliance program.
Spanish-Language Form I-9
The Spanish-language version of Form I-9 may be officially completed and retained only in Puerto Rico. Employers operating elsewhere in the United States must use the English-language form.
Use of the Spanish-language Form I-9 outside Puerto Rico is classified as a substantive violation. Employers with multilingual workforces may provide translation assistance, but they must use the authorized form and follow the applicable preparer or translator requirements.
Errors That Remain Technical or Procedural
The revised Fact Sheet preserves a narrower category of technical errors. These include:
- Missing the employee’s Social Security number when the employer is enrolled in and using E-Verify for that employee.
- Missing the employee’s address in Section 1.
- Missing the employer’s business name or physical business address in Section 2.
- Missing the employee’s other last names used, when applicable.
- Missing the employee’s full name at the top of page two.
- Missing the employee’s full name at the top of Supplement A or Supplement B.
These errors remain subject to the 10-business-day correction period if identified through an ICE inspection. Employers should nevertheless correct them promptly during an internal review.
The classification of an error as technical does not make the error immaterial. An employer that fails to correct technical errors within the permitted period may face penalties because the errors can become substantive after the correction period expires.
What Happens During an ICE I-9 Audit?
An ICE I-9 audit begins when the employer receives a Notice of Inspection (NOI). ICE generally provides at least three business days for the employer to produce the requested Forms I-9. The agency may also request supporting records, including:
- Payroll records.
- Current and former employee lists.
- Business licenses.
- Articles of incorporation.
- Other records relevant to employment eligibility verification.
After reviewing the records, ICE may issue a Notice of Technical or Procedural Failures, Warning Notice, Notice of Suspect Documents, Notice of Discrepancies, or Notice of Intent to Fine.
An employer that receives a Notice of Intent to Fine generally has 30 calendar days to request a hearing before the Office of the Chief Administrative Hearing Officer or pursue an appropriate response. Failure to act within the deadline can result in a final order.
Employers should not wait until an NOI is served to determine whether their records are complete.
Steps Employers Should Take Before an Audit
Employers should implement the following actions as part of their 2026 I-9 compliance program:
1. Conduct a Proactive Self-Audit
Review current employees and qualifying former employees against payroll and HR records. Identify:
- Missing Forms I-9.
- Forms completed late.
- Incomplete Section 1 or Section 2 fields.
- Incorrect document information.
- Missing signatures or dates.
- Remote verification errors.
- Electronic system deficiencies.
Document the scope, methodology, findings, and corrective actions.
2. Correct Forms Properly
Do not use white-out, erase original entries, or backdate corrections. Corrections should preserve the original information, identify the corrected entry, and include the initials and current date of the person making the correction.
Section 1 corrections generally must be made by the employee. Section 2 corrections generally must be made by the employer or authorized representative. Employers should use a written memorandum when necessary to explain corrections or the late creation of a missing Form I-9.
3. Review Remote Verification Procedures
Confirm that the employer is actively enrolled in the required program. Verify that HR staff mark the alternative procedure box and retain the required documentation for each applicable Form I-9.
4. Audit the Electronic System
Request current compliance documentation from the electronic Form I-9 vendor. Review audit trail functionality, signature controls, security procedures, retention practices, and document reproduction capabilities.
5. Retrain HR Personnel
Training should address:
- Section 1 and Section 2 deadlines.
- Acceptable document procedures.
- Remote document examination requirements.
- Corrections and audit records.
- Form retention rules.
- Prohibitions against backdating and improper alterations.
- Escalation procedures for unusual cases.
Secure Workforce Compliance Guidance
The March 16, 2026 ICE Fact Sheet requires employers to treat Form I-9 administration as an ongoing compliance obligation. Routine omissions can now create immediate penalty exposure. A standardized process, documented self-audits, and qualified legal review are essential components of an effective compliance program.
Blasingame Law LLC provides workforce compliance guidance, internal Form I-9 audit support, HR training, and assistance with ICE inspection preparation and response. Review our internal I-9 audit guide for additional compliance planning information.
Employers should conduct a focused Form I-9 self-audit before receiving a Notice of Inspection. For assistance evaluating your records, remote verification procedures, or electronic I-9 system, contact Blasingame Law LLC or schedule a consultation.
