The Laboring Oar®
Significant I-9 Form Policy Changes and Unexpected Penalties. Here's What Employers Need to Know
by Kelly M. Raney
On March 16, 2026, ICE updated its Form I-9 Inspection Fact Sheet ("the 2026 I-9 Inspection Sheet"). The changes were notable in that more than ten categories of errors that employers have long been able to fix during an audit inspection without consequence are now treated as immediate, unforgivable violations carrying fines of $288 to $2,861 per violation.
Why this matters
For nearly 30 years, the line between a fixable error and a fineable one was drawn by a 1997 interim guidance document. While never officially and formally adopted, ICE and administrative courts consistently followed it. The 2026 I-9 Inspection Fact Sheet, which ICE has quietly implemented, effectively supersedes that memo, with no transitional notice period.
What Has Changed
Under the old framework, Form I-9 errors identified during an ICE audit fell into two buckets: “substantive” violations and “technical” (or procedural) violations. Substantive violations — such as failing to verify documents at all — carried immediate fines. Technical errors — such as missing a date or failing to complete a field — could be corrected within 10 business days once ICE pointed them out, with no fines, if they were timely corrected. The 2026 I-9 Inspection Fact Sheet transforms many former “technical” violations to “substantive” violations.
Below is the list of former technical violations which now constitute substantive violations and will result in the immediate imposition of fines:
The error |
Where on the form |
Status |
Missing employee date of birth |
Section 1 |
Now substantive |
Missing USCIS/alien number (when required) |
Section 1 |
Now substantive |
Missing date next to employee’s signature |
Section 1 |
Now substantive |
Missing work authorization expiration date |
Section 1, Box 4 |
Now substantive |
Completion of the Spanish-language form (outside Puerto Rico, where it is expressly authorized) |
Entire form |
Now substantive |
Missing name or title of employer representative |
Section 2 |
Now substantive |
Incomplete document info in Section 2 (title, number, issuing authority, expiration) — even if a copy of the document was kept on file |
Section 2 |
Now substantive |
Missing first day of employment |
Section 2 certification |
Now substantive |
Incomplete preparer or translator information |
Supplement A |
Now substantive |
Failure to check alternative procedure box, or use of remote verification without active E-Verify enrollment |
Section 2 / Supplement B |
Now substantive |
Electronic I-9 system deficiencies (audit trails, e-signatures, security documentation) |
Electronic records |
Now substantive |
One point deserves special attention: ICE has now made explicit that retaining a copy of an employee’s identity or work authorization document does not cure missing or incomplete information on the form itself. Having the photocopy is not a substitute for filling in every field correctly.
Remaining “fixable” technical errors subject to the 10-day cure window
Some errors remain in the technical category and can still be corrected after an ICE Notice of Intent to Fine. These include failing to record the employee’s name at the top of page 2, missing a business name or address in Section 2, and failure to record an employee’s other last names or physical address in Section 1. A missing phone number or email address in Section 1 still does not constitute a violation at all.
What employers can do
If an employer has not recently conducted an internal audit of their IRS Form I-9s, consider doing so in order to self-correct outside of an ICE I-9 audit.
California employers should also be aware of their California-specific legal obligations triggered by a Notice of Inspection from the federal government, which include posting a notice to current employees within 72 hours of receipt of the Notice of Inspection.
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