Immigration

On March 16, 2026, Immigration and Customs Enforcement (ICE) issued updated guidance that significantly increases Form I-9 compliance risk for employers. Several errors that were historically treated as technical violations (and correctable after receiving a Notice of Technical or Procedural Failures) are now classified as substantive violations, meaning they may result in fines immediately if discovered during an audit.

Previously, many employers relied on the 10-business-day correction period to fix common technical violations discovered during an ICE audit. Under the new guidance, a number of those same mistakes may result in penalties without an opportunity to cure first. For employers with large workforces, even small recurring errors can create significant financial exposure.

What Is Form I-9?

Form I-9 is the federal employment eligibility verification form that U.S. employers must complete for each employee hired to work in the United States. The form is used to verify both identity and authorization to work.

How Does a US Immigration and Customs Enforcement (ICE) Audit Begin?

An ICE audit typically begins when Homeland Security Investigations (HSI) serves the employer with a Notice of Inspection (NOI). Once served, the employer generally has three business days to produce requested Forms I-9 and supporting records, which may include payroll records, employee rosters, business licenses, and corporate formation documents, among other documents. After review, ICE may issue notices identifying violations, requesting corrections of technical errors, and/or seeking monetary penalties.

March 2026 Changes: Technical Errors Now Treated as Substantive

• Form Violations
  • Using the Spanish Form I-9 outside Puerto Rico
  • Deficiencies in electronic Form I-9 audit trails, signatures, or system security documentation
• Section 1
  • Missing employee date of birth
  • Missing USCIS/A-Number when required
  • Missing date next to employee signature
  • Missing work authorization expiration date when applicable
• Section 2
  • Missing employer representative name or title
  • Missing or incomplete document data (document title, issuing authority, number, expiration date)
    • **Note: Previously, if an employer forgot to enter document details in Section 2 but retained a copy of the document, the omission could often be corrected later. Under the new guidance, missing document information may now be a substantive violation even if copies were retained.
  • Missing employee’s first day of employment in the certification
  • Improper use of remote verification procedures (including failure to check the alternative procedure box or lack of E-Verify eligibility)
• Supplement A (Preparer and/or Translator Certification for Section 1)
  • Incomplete preparer/translator information in Supplement A

Errors Still Considered Technical Violations (Usually Correctable)

• Form Violation
  • Using an outdated Form I-9 version at the time of initial completion
• Section 1
  • Missing employee address in Section 1
  • Missing other last names used, if any
  • Missing Social Security Number for E-Verify employers
• Section 2
  • Missing Business Address
• Supplement A (Preparer and/or Translator Certification for Section 1)
  • Missing employee full name at top of page 2
• Supplement B (Reverification and Rehire – formerly Section 3)
  • Missing employee full name at top of page 2
  • Missing updated name during reverification

Impact of E-Verify Participation

Participation in E-Verify can directly affect an employer’s Form I-9 compliance obligations and audit risk. For example, as noted above, if the employer participates in E-Verify,  failure to ensure the accuracy of the employee’s social security number in Section 1 is treated as a technical violation, rather than a substantive violation. Additionally, in general, an employer must be a qualifying E-Verify participant to use the alternative remote verification process. If an employer uses remote verification without meeting program requirements or fails to properly annotate Form I-9, ICE may treat the error as a substantive violation.

Potential Outcomes of an Audit

Following inspection, ICE may issue:

• Compliance Letter (no violations found)
• Notice of Technical or Procedural Failures
• Warning Notice
• Notice of Intent to Fine (NIF)

Current Penalty Range

For 2025, under 8 CFR 274a.10, civil penalties for Form I-9 paperwork violations range from $288 to $2,861 per violation, with higher penalties possible for knowingly employing unauthorized workers.  

ICE may adjust the base fine amount based on five factors: the size of the business, whether the employer acted in good faith, how serious the violations were, whether unauthorized workers were involved, and whether the employer has prior violations.

Recommended Next Steps for Employers

1. Conduct an internal I-9 audit
2. Review remote verification procedures and E-Verify enrollment status
3. Confirm electronic I-9 systems meet DHS standards
4. Train Human Resources and onboarding personnel on updated rules
5. Consult your Pryor Cashman attorney before making large-scale corrections or responding to an ICE audit notice. 
6. Pryor Cashman can also help you plan and implement an internal audit, review of your systems and procedures, and train your team.

- -

Associate Meghan Lenahan was a contributing author to this client alert.