ICE Redefines "Substantive" I-9 Violations, Increasing Employer Penalty Risk

While the recent surge in federal worksite enforcement has captured headlines, a much quieter policy update behind the scenes appears to significantly raise the stakes for employers facing a Form I-9 inspection. Recently, US Immigration and Customs Enforcement (ICE) updated the Form I-9 inspection fact sheet on its website, which would fundamentally alter how the agency evaluates routine I-9 paperwork errors. 

In an apparent departure from established agency practice, it now appears that ICE has reclassified several common administrative errors as "substantive" violations. As a result, mistakes that might have been treated as correctable clerical errors could now be subject to immediate monetary penalties following a Form I-9 inspection.

For HR teams and business owners, the margin for administrative error seems to have  dramatically diminished.

Background: The Legacy of the 1997 Virtue Memorandum

To understand the possible impact of this shift, it is helpful to look at how I-9 paperwork penalties have been assessed for nearly thirty years.

Failure to satisfy employment eligibility verification requirements is known as a "paperwork violation." Under the law, these violations are categorized into two types: (i) Substantive and (ii) Technical or Procedural.

1. Substantive Violations: Traditionally defined as serious errors that may lead to the hiring of an unauthorized worker (e.g., failure to prepare a Form I-9 at all, or failing to review documentation).

2. Technical or Procedural Violations: Errors of a minor clerical nature (e.g., missing an address).

Critically, Section 274A(b)(6) of the Immigration and Nationality Act provides employers with a statutory defense for technical failures: if ICE identifies a technical error during an audit, they must provide the employer with a minimum of 10 business days to correct the oversight before a fine can be issued.

Since 1996, how ICE drew the line between "substantive" (immediate fine) and "technical" (10 days to fix) was governed heavily by a memorandum issued on March 6, 1997, by then INS Acting Executive Commissioner of Programs, Paul W. Virtue. The so-called "Virtue Memo" served as a primary guide for auditors, establishing that many minor oversights could be treated as correctable technical errors, provided the employer acted in good faith.

Key Errors Reclassified as Substantive

The newly revised ICE fact sheet updates these longstanding definitions, reclassifying several common errors as substantive. Based on a comparison of the new 2026 guidelines against the Virtue Memo and internal ICE guidance from 2008 and 2009, employers should be aware that the following errors are now classified as substantive violations and could be subject to immediate fines:

• Missing Date of Birth: Under the 2008 ICE Guide to Administrative Form I-9 Inspections, failing to ensure an employee provided their birth date in Section 1 was explicitly listed as a technical violation. Under the new guidelines, failing to ensure the employee completes their typed legal name and date of birth is substantive. It’s unclear whether ICE would assess a missing date of birth as substantive by itself.
   

• Missing Date of Hire: In a July 2009 internal ICE memorandum, the agency specifically directed field offices to treat the "Failure to provide the date employment begins in Section 2" as a technical violation. This omission is now listed by ICE as substantive.
   

• Incorrect use of Spanish-language I-9: in the 2008 ICE Guide, ICE noted that use of the Spanish version of the Form I-9 outside of Puerto Rico would be a technical error. Now, ICE indicates that completion of a Spanish-language version of the I-9 outside of its authorized area is a substantive violation.
   

• Preparer and/or Translator Errors: in the 2008 ICE Guide, ICE indicated that a failure to ensure that a preparer and/or translator provide his or her name, address, signature, or date would be a technical violation. In the 2026 guidance, ICE notes that a failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on the Form I-9 at the time of completion in Supplement A is a substantive violation. 
   

• Missing title of the employer or authorized representative: The 2008 ICE Guide noted that failure on the part of the employer or authorized representative to print their name in the attestation portion of Section 2 would be a substantive violation, but failure to provide a title would be a technical error. Under the 2026 guidelines, ICE lumps both of these together, noting that a failure to print the complete name and title of the employer or authorized representative would be a substantive violation. 
   

• Failure to Date Sections 1 or 2: the July 2009 internal ICE memorandum directed agents to treat a "Failure to date” as a technical, curable violation. Later, in a 2013 liaison teleconference between the American Immigration Lawyers Association (AILA) and Homeland Security Investigations (HSI), the agency clarified its stance, noting that a failure to timely complete the form was a substantive violation, but a failure to timely date the form was a technical violation. The 2026 updated fact sheet lists "Failure to ensure the timely preparation of Section 1" and "Failure to timely prepare Section 2" as substantive violations. It additionally clarifies that a failure to date Section 1, or a failure to date the Certification portion of Section 2, are now also substantive violations.
   

• Failure to enter Rehire Date: In the 2009 internal ICE memo, the agency noted that failure to provide the date of rehire in Section 3 would be a technical failure. In the 2026 guidance, ICE notes that failure to provide the date of rehire in Supplement B would now be substantive.

Closing the "Legible Photocopy" Carve-Out

The new guidance also addresses a long-standing practice regarding document retention.

According to the Virtue memo and the 2008 ICE guidance, if an employer failed to record a document title, document number, or expiration date in Section 2 or 3, but they had retained a legible photocopy of that document and attached it to the Form I-9, the employer could claim the omission as a technical failure. The employer would be given 10 days to transcribe the missing numbers from the photocopy onto the form.

Similarly, if an employee had failed to provide their alien number or I-94 number in Section 1, but that information was provided in Sections 2 or 3 of the form or on a legible copy of a document retained with the form, the omission would be classified as a technical or procedural error.

Under the new guidelines, these omissions may now be treated as substantive violations regardless of whether or not document copies have been retained or the information appears elsewhere on the form. 

Electronic I-9 Systems: Heightened I-9 Standards

Many organizations have transitioned to electronic I-9 software to help streamline the onboarding process. While using the right software can help reduce mistakes, ICE’s updated guidelines reflect that simply digitizing the form is not enough. The technology itself must adhere to the regulatory requirements. 

Specifically, the new guidelines state that it is a substantive violation if an employer experiences a:

"Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer for a fee, or representative, as set forth in 8 C.F.R. § 274a.2(e), (f), (g), (h), and (i)."

If an electronic I-9 system’s audit trails, electronic signature protocols, or security documentation fall short of these specific DHS standards, the procedural failures of the software may be treated as substantive violations for the employer.

Remote Verification (Alternative Procedure) Requirements

In August 2023, DHS updated the Form I-9 to create explicit fields supporting the "Alternative Procedure" (the remote or virtual inspection process). The latest ICE guidelines clarify how these fields will be audited.

Procedural failures regarding the remote verification procedure are classified as substantive violations. This includes:

• Failing to check the alternative procedure box in Section 2 or Supplement B indicating that remote inspection was used.

• Failing to be an active E-Verify participant at the time the alternative procedure was used to examine documents.

Within this section, ICE also makes reference to a “DHS Non-E-Verify Remote Document Examination Form I-9 program” which refers to an exploratory pilot program first proposed in August 2023 designed to evaluate whether employers who do not use E-Verify can safely and securely inspect Form I-9 documents remotely.

Newly Classified Technical Violations

While ICE expanded the list of substantive violations, the agency also provided clarity on issues involving some of the newer fields and/or requirements that have been added to the I-9 since the Virtue memo was first released in 1997. The new guidance lists the following errors as "Technical or Procedural Failures," meaning employers should be granted 10 business days to correct them before facing a penalty:

• E-Verify SSN Mismatches: If an employer is enrolled in E-Verify, failing to ensure that the employee’s Social Security Number is correct in Section 1 is a technical failure.
   

• Missing Names on Additional Pages: Failing to record the employee's complete name at the top of page 2 (for older two-page editions of the form), at the top of Supplement A, or at the top of Supplement B.
   

• Last names used (if any): a failure to ensure that an individual provides his or her other last names used (if any). ICE also notes that a missing email address or phone number in Section 1 will not constitute a violation.
   

• Name Changes: Failing to record an employee's new name (if applicable) in the appropriate section of Supplement B during reverification.

The agency also noted that failing to use the version of the Form I-9 that was current at the time the form was initially completed is now explicitly a technical failure. Previously in memoranda, ICE had noted that as long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time, the employer may simply attach an explanation. 

What This May Mean for Employers

The key takeaway for employers is that the margin for administrative error during an I-9 audit has narrowed. Practices that were previously correctable may now result in immediate fines.

In light of the above, employers may wish to consider the following proactive strategies: 

• Continue to conduct routine I-9 assessments: Review and evaluate your I-9s to help identify and correct (where possible) legacy errors prior to any agency inspection. While many errors have now been classified as substantive, taking good faith efforts to correct may still help reduce potential fines in the event of an inspection.
   

• Review and assess paper I-9s: employers who still have paper I-9s may be especially vulnerable to errors and omissions that many electronic I-9 systems can help detect. Reviewing and correcting (where possible) should still help reduce risk.
   

• Enhance I-9 training: Ensure that HR professionals, managers, or recruiters involved in I-9 completion understand the rules for completing I-9s and the importance of ensuring accurate dates and entries.
   

• Assess your virtual I-9 procedures: employers taking advantage of the DHS alternative procedure for examining documents remotely, should consider reviewing their process to help ensure that they qualify (e.g., active E-Verify participant) and that they are following all of the required steps.  
   

• Evaluate electronic I-9 systems: Verify that your software solution adheres to the electronic signature and security standards, and that it utilizes safeguards to help prevent users from leaving mandatory fields blank.

By adopting a more proactive approach to I-9 compliance, employers can better navigate this evolving regulatory landscape and help reduce their potential exposure to increased administrative errors and possible penalties.

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