Posted in: Immigration | Labor & Employment
I will start by saying — I’m NOT an attorney and none of this is legal advice. What I am going to do is flag something important that happened in March that every one of our members needs to know about before they get a knock on the door from ICE.
On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) quietly updated a fact sheet that employers and their employment lawyers have relied on for nearly 30 years. No press release. No Federal Register notice. No warning of any kind. They just changed a page on their website. And that change could cost your gin a lot of money if you’re not paying attention.
A little background on how I-9 audits work
You already know that every employer has to complete a Form I-9 for every new hire to verify their identity and work authorization. When ICE comes to inspect — which starts with a Notice of Inspection (NOI) giving you three business days to produce your records — the auditor goes through your I-9s and sorts any problems into two buckets:
- Technical or procedural failures — minor, correctable mistakes. ICE gives you 10 business days to fix them before any fine is assessed.
- Substantive violations — serious errors that directly relate to an employee’s work authorization. These carry immediate fines. No correction window. No second chance.
For almost 30 years, the line between those two categories was drawn by something called the Virtue Memorandum — a 1997 interim guidance document that employment attorneys have used ever since to advise employers on what they could fix after an audit and what would cost them money on the spot. That guidance is now largely out the window.
What changed in March 2026
ICE updated its “Form I-9 Inspection” fact sheet and moved more than 10 common errors from the “technical, correctable” category into the “substantive, immediate fine” category. Just like that. No rulemaking. No comment period. No announcement.
Here are some of the errors that used to be correctable but are now substantive violations subject to immediate fines:
- Missing employee date of birth in Section 1
- Missing date in Section 1 (the date the employee signed)
- Missing name or title of the employer or authorized representative in Section 2
- Missing date of hire in the Section 2 certification
- Missing date in the employer’s signature block in Section 2
- Incomplete document information in Section 2 — even if you kept a copy of the document
- Missing preparer/translator information in Supplement A (if one was used)
- Missing date of rehire in Supplement B
- Using remote document verification while NOT enrolled in E-Verify or a DHS-authorized program
- Failure to check the “alternative procedure” box when remote verification was used
- Electronic I-9 system failures — audit trails, electronic signatures, system security documentation
That last one about document copies is worth calling out specifically. Under the old guidance, if you had incomplete information in Section 2 but had kept a copy of the employee’s document, ICE treated it as a correctable technical error. That’s gone. ICE now says the copy doesn’t cure the form. Both the form AND the document copy need to be complete. Period.
What the fines look like
Substantive violation fines run from $288 to $2,861 per form. Those are the current inflation-adjusted numbers from the Federal Register (January 2, 2025). And they stack — every form with a substantive violation is a separate fine.
Morgan Lewis ran the numbers on what that looks like in practice. An employer with 200 Forms I-9 that have errors that were previously flagged as “technical” — and left in place because they figured they’d correct them during an audit — could now be looking at $57,600 to over $572,000 in paperwork penalties alone. That doesn’t include the much higher fines for knowingly employing unauthorized workers, which can go up to $28,619 per worker.
Why this is a bigger problem than it sounds
A lot of employers — maybe some of you — have done internal I-9 audits in recent years. You found some errors, your attorney told you they were technical, and you didn’t bother to fix them because you knew you’d have 10 days to correct them if ICE ever showed up. That advice was correct then. It may not be correct now. Those same errors could now be substantive violations that have to be remediated before ICE shows up — not after.
Add to that the fact that ICE has dramatically ramped up worksite enforcement. They served more than 5,200 I-9 audit notices in just the first phase of a nationwide operation in 2025. Agriculture, construction, manufacturing, and hospitality have been the primary targets — which means our industry is squarely in the crosshairs.
One more thing worth knowing: Some attorneys, including those at Zuckerman Law, have raised the argument that these changes may be legally challengeable under the Administrative Procedure Act — because ICE changed longstanding policy without going through proper rulemaking. That argument may eventually hold up in court. But don’t count on it protecting you right now. If ICE shows up and finds substantive errors, they can assess fines immediately under the new guidance. Sort out the legal fight later.
What you should do right now
Here’s my practical advice. Several of the law firms I referenced below (Ogletree, Littler, Morgan Lewis, Holland & Knight) are all saying the same thing:
- Conduct a fresh internal I-9 audit. Even if you did one recently, go back and look at the results through the lens of the new guidance. Errors that were classified as “technical” before March 16, 2026 may now be substantive. If you can fix them before an NOI arrives, do it — and do it the right way (see USCIS correction guidance).
- Stop relying on document copies as a cure. If your Section 2 has incomplete document information, having the copy on file doesn’t fix it anymore. The form has to be complete.
- Retrain whoever fills out your I-9s. Every field matters. Every date matters. The name and title of the employer representative matters. Make sure whoever is doing this knows to complete everything completely and on time — not almost completely.
- Call your attorney. If you have any doubt about your current I-9 situation, now is the time to get an attorney-guided audit done. Work-product protection may apply to an attorney-directed audit in a way that a DIY audit doesn’t. Don’t wait until you get an NOI.
NCAE is holding an I-9 Webinar
Our friends at the National Council of Agricultural Employers (NCAE) are holding an I-9 Webinar next week. The webinar is May 14th at 2PM Eastern Time.
Registration is : https://us06web.zoom.us/webinar/register/WN_nArOkdL6TZCmWeA3Ahh5Lg#/registration
As always, give us a call if you have questions. We are happy to talk through any of this with you and point you toward resources that can help.
Sources and further reading
