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:

1. 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).
2. 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.
3. 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.
4. 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

• ICE Fact Sheet: Form I-9 Inspection Under INA § 274A (updated March 16, 2026)
• Ogletree Deakins: ICE Issues New Fact Sheet on I-9 Violation Classifications (April 21, 2026)
• Littler: Form I-9 Updates — ICE Sets Aside Prior Positions
• Morgan Lewis: ICE Rewrites the Rules on Form I-9 Violations
• Holland & Knight: Quiet Change, Serious Consequences
• USCIS I-9 Central — official forms, instructions, and M-274 Handbook for Employers

If you have already submitted your information for the gin cost survey, THANK YOU!  If you started filling out the information but stopped, we would appreciate you completing the information.  If you have not started the survey, PLEASE consider taking a few moments to complete this year’s annual cost survey. 

The Cost Survey is a critical tool that helps us effectively communicate the real operational expenses across our industry.  It captures key data points such as electrical, gas, and labor costs, along with several other categories that impact your facility year after year.  If you need any assistance accessing it, including help with passwords, please don’t hesitate to reach out.

You can submit the information in multiple ways.  There are links below to the Electronic version of the USDA/NCC Survey, the Paper version of the USDA/NCC Survey and the Paper version of the TCGA Survey.  Please feel free to use any of the available options. 

Electronic Gin Cost Survey

Email to Harrison Ashley at hashley@cotton.org for paper or fillable versions.

Last week a group of Growers and Ginners from the Southeast went to Washington to visit with our members of Congress about a number of topics facing our members right now. Over just a day and a half, we were able to meet with over 60 Congressional offices. Groups met with various staff and members of Congress.

The theme of the week was the need for additional support given the huge increases in fuel, fertilizers and chemicals in recent months BEFORE the disruptions in the Middle East and even larger ones since the war started. There was also a lot of discussion regarding the need for the Buying American Cotton Act. BACA, as it is known would be a huge driver of demand for US cotton. Nearly every meeting we got support for both of our initiatives.

We were very encouraged by our meetings and look forward to more visits in DC over the next few months.

This is as much a public service announcement/reminder as anything else. In the past couple of weeks, we’ve heard several reports of scammers or attackers getting access to and transferring money via ACH payment transfer. We’ve heard of phishing schemes being successful and attackers taking over email accounts, and other attacks on ag.

We just want to remind everyone that you need to be VERY vigilant and find some training on what is okay to open and what is not in emails. There are a lot of YouTube training out there.

Make sure you are checking your bank accounts regularly for any unexpected transactions and don’t authorize transfers unless you are absolutely sure that the transfer is legitimate. This may even require working with those that you have accounts with (suppliers etc) to make sure they are being just as cautious.

With the wars in Iran and Ukraine, there has been a huge uptick in cyber attacks, phishing, and other attacks on our financial system and individuals. These geographic regions have some of the more competent networks of cyber criminals out there. Please be safe and watch your accounts.

DSF

Last Fall the Department of Labor made significant changes to the way the Adverse Effect Wage Rate is calculated across the H-2A program. In most cases this lowers wage impact to most users of the program.

The new Interim Final Rule became effective on the day it was release, just before the government shut down in October. The new rule sets up a two-tier skill requirement based wage and creates a wage adjustment for the H-2A workers accounting for some of the non-wage based benefits such as the cost of housing.

This interim final rule has been challenged by the United Ag Workers in California. The first hearing in the case will be today. An Interim Final Rule (IFR) becomes effective immediately while comments are taken and evaluated with a Final Rule coming out some months later. It is widely expected that the Final version of this rule will come out early this summer. This could complicate this law suit. If the FR comes out before the judge rules in the case, it could become a moot point as the IFR (the rule that was challenged) would be replaced by the final rule. If the judge rules against the IFR in the case before the Final Rule is published, the IFR could be tossed out and the Final Rule blocked.

There’s a lot going on with this case and it could make a significant difference in the wages paid to H-2A workers this fall. We will be watching for the outcome of this case as it makes its way through the court.

DSF

Okay… we aren’t looking to hire anyone…. We need YOUR help. From time to time, we go to Washington with our counterparts in Southern Cotton Growers. We discuss a number of topics including how costs have skyrocketed in the past several years. While having individual stories is great, we need more broad data. It really helps to be able to show survey data over time to show that the cost of insurance, energy labor and others have gone up while, given commodity prices, we haven’t been able to pass those costs along.

The most comprehensive data we can be part of is to participate in the National Cotton Ginners gin data survey. Please review the article below that appeared in a recent Cotton’s Week. We need as many of you as possible to participate. This data is very helpful in representing our industry within the states and in Washington.

DSF

Ginning Cost Data Needed

The National Cotton Ginners Association urges all ginners to complete the USDA Agricultural Research Service’s 2026 Cost of Ginning Survey.  The electronic survey questionnaire is available from the NCGA website Electronic Gin Cost Survey. In addition, a fillable paper document can be downloaded and submitted to hashley@cotton.org.  After the data has been inputted the form will be destroyed. Gin Cost Survey – Fillable Form. It is important that you participate in this confidential survey.  There will be a drawing for two Bass Pro Shop gift cards for those ginners completing the survey by May 31. 

The cost of ginning cotton is an important concern for producers and ginners, and data from this survey provides information about key variable costs as a component of the overall cost of ginning cotton. The confidential survey also helps to 1) identify historical trends of gin operation and 2) document the incorporation of new technologies for maintaining or reducing ginning costs.

Questions regarding the survey should be addressed to Harrison at 901-260-8049 or hashley@cotton.org.