U.S. Immigration & Customs Enforcement (ICE) has issued updated guidance on how violations identified during Form I-9 inspections will be evaluated. Under these changes, issues previously treated as technical violations, which allowed employers to correct errors before penalties were assessed, may now be classified as substantive violations that carry penalties. As a result, it is more important than ever for employers to complete I-9s accurately, as they are more likely to face immediate financial penalties without the opportunity to correct errors.
Reclassification of I-9 Violations
ICE’s updated guidance expands the scope of what is considered a substantive violation, beyond the prior standards that have been in place since 1997. Specifically, the following errors and omissions are now treated as substantive violations and may result in penalties:
- Missing employee date of birth in Section 1
- Missing employee USCIS/alien number in Section 1, when applicable
- Missing date next to the employee signature in Section 1
- Missing expiration date in Section 1, Box 4, when required (even if listed in Section 2, List A)
- Incomplete or incorrect employee attestation in Section 1
- Failure to date Section 1
- Incomplete preparer/translator information (name, address, signature, or date) in Supplement A
- Use of Spanish-language Form I-9 outside of Puerto Rico
- Missing name and title of the employer representative
- Failure to record the first day of employment in Section 2
- Incomplete or incorrect List A, B, or C document information in Section 2 (e.g., document title, number, issuing authority, or expiration date), even if document copies are retained
- Failure to date Section 2
- Failure to record rehire date, when applicable
- Failure to properly complete reverification
- Failure to check the remote document inspection box, when applicable
- Improper use of alternative (remote) verification procedures, including failure to indicate remote inspection or lack of active E-Verify enrollment
- Noncompliance with electronic I-9 system requirements (e.g., audit trails, electronic signatures, security standards)
- Failure to complete Form I-9 within required timeframes
In addition, ICE’s guidance formalizes which errors are considered technical errors. Many of these errors have been historically treated as technical errors in practice but were never formally defined:
- For E-Verify participants, failure to ensure that the employee’s Social Security number is provided and accurate in Section 1
- Failure to record the employee’s full name on applicable pages (Page 2, Supplement A, or Supplement B)
- Failure to capture other last names used, if any
- Failure to record an employee’s new name in Supplement B during reverification, when applicable
- Use of an outdated version of Form I-9 at the time of completion
- Missing employee address in Section 1
- Missing employer business address in Section 2
Employer Considerations
Employers have long been expected to comply with Form I-9 requirements; however, employers previously had the opportunity to correct technical errors during an ICE inspection without incurring financial penalties. Under ICE’s new guidance, coupled with the significant increase in audit activity across multiple industries in recent years, it is more important than ever for employers to ensure accuracy and completeness at every stage of the Form I-9 process.
Employers should identify any I-9 errors and correct them prior to the issuance of a Notice of Inspection, as they will now have a limited opportunity to avoid penalties for routine administrative mistakes. For organizations operating across multiple worksites or with large employee populations, this risk can escalate quickly. Even minor, recurring errors can accumulate over time, increasing overall exposure during an audit or inspection.
Employer Next Steps
Employers should take proactive steps to assess and strengthen their Form I-9 compliance processes, including:
- Conducting internal I-9 audits with a clear and consistent correction protocol
- Training HR personnel and authorized representatives on updated requirements and expectations
- Ensuring proper use of the current version of Form I-9
- Maintaining clear, accurate documentation of all corrections and updates
- Do not rely on copies of official documents to address missing information, as ICE no longer considers these technical errors
- For employers using electronic I-9 systems, ensuring full compliance with federal requirements, that include standards for tracking history, recordkeeping, and electronic signatures
- Ensure you are using DHS approved alternative procedures correctly and are enrolled in E-Verify, if applicable
Taking these steps can help organizations reduce risk and strengthen overall compliance in a more stringent enforcement environment.
Additional Resources
