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Immigration and Customs Enforcement (ICE) has updated its Form I‑9 Inspection guidance, changing how the agency classifies certain Form I‑9 errors during employer audits.
Although the underlying Form I‑9 requirements remain the same, several errors that were considered “technical or procedural” are now treated as “substantive,” which may result in penalties without an opportunity to cure.
Under the Immigration and Nationality Act (INA), Form I‑9 errors generally fall into two categories:
- Technical or procedural failures, which allow employers up to 10 business days to correct errors found during an ICE inspection; and
- Substantive violations, which may result in monetary penalties with no correction period if errors are identified during an ICE inspection.
ICE’s updated fact sheet, issued on March 16, 2026, confirms that only technical or procedural failures qualify for a correction window, while substantive violations do not.
Prior ICE guidance and internal memoranda treated many common Form I‑9 mistakes, such as missing dates or incomplete fields, as technical and therefore correctable. As reflected in the updated fact sheet, the following errors are now reclassified as substantive violations and no longer fall within the statutory correction period:
| Form Section | Errors Reclassified as Substantive Violations |
| Section 1 – Employee Information | Missing employee date of birth |
| Failure to date Section 1 | |
| Supplement A – Preparer/Translator | Incomplete or missing preparer/translator information (e.g., missing name, address, signature, or date) |
| Section 2 – Employer Review | Missing date of hire |
| Section 2 – Employer Certification | Failure to date the Section 2 employer certification |
| Missing employer or authorized representative title | |
| Section 2 – Document Information | Missing required document information (even where a legible photocopy of the document is retained) |
| Supplement B – Rehire/Reverification | Missing rehire date |
| Form Usage | Using Spanish‑language Form I‑9 outside Puerto Rico |
The updated guidance may limit employers’ ability to remediate routine paperwork deficiencies identified during an audit and increase the likelihood of immediate penalty exposure. Employers may wish to consider:
- Conducting internal Form I‑9 audits to identify and remediate errors proactively;
- Reviewing onboarding and I‑9 or E-Verify completion practices, including Form I-9 training for HR personnel and authorized representatives; and
- Ensuring consistency and completeness in both Section 1 (employee information and attestation) and Section 2 (employer review and verification).
Employers using electronic I‑9 systems should also confirm that auto‑population features or system defaults do not result in missing or incomplete required fields.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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