ICE Updates Form I-9 Inspection Guidance Again: Three Key Changes

Earlier this year, U.S. Immigration and Customs Enforcement (ICE) quietly made a significant change to its Form I-9 inspection guidance, reclassifying several common administrative errors as “substantive” violations that may result in immediate monetary penalties.

Now ICE has updated the guidance again, with the latest version bearing an August 31, 2026 revisions date.

While the latest update does not alter the substantive and technical violation classifications announced in March, it makes several other noteworthy changes involving electronic I-9 audit trails, employees who lose work authorization, and the calculation of civil penalties.

Taken together, the changes offer another glimpse into how ICE may approach I-9 inspections at a time when employment authorization rules are evolving rapidly.

1. Electronic I-9 Audit Trails Take Center Stage

The August update makes a small but potentially revealing addition to ICE’s discussion of electronic I-9 systems. Previously in the ICE Fact Sheet’s “Background” section, the agency stated that employers using an electronic system must be able to produce an on-screen version of the Form I-9 and legible and readable paper copies. The revised fact sheet adds five words to that description: “with a compliant audit trail.”

Notably, this does not create a new legal requirement for employers. Federal regulations have long imposed specific requirements on electronic I-9 systems, including controls relating to integrity, security, electronic signatures, indexing, and audit trails. The new language nevertheless places additional emphasis on the potential role of the audit trail during an ICE inspection.

For employers using an electronic I-9 platform, the Form I-9 itself is only part of the record. During an ICE inspection, investigators may also scrutinize the underlying electronic system and its history of actions and changes. A seemingly complete electronic I-9 may therefore raise additional questions if the audit trail is missing, incomplete, or reveals some other issue with how the form was created or maintained. 

Employer takeaway: When evaluating I-9s records maintained electronically, employers may want to consider two distinct layers: the information contained on the form itself and the electronic recordkeeping associated with the form. ICE’s new reference to a “compliant audit trail” is a useful reminder that an I-9 inspection may extend beyond what appears on the face of the form.

2. ICE Adds a New Notice Addressing Changes in Work Authorization

Perhaps the most interesting addition to the ICE I-9 inspection process is a new enforcement notice: the “Notice of Expired or Rescinded Immigration Status and/or Employment Authorization.” According to ICE, this notice informs an employer that certain employees currently do not have authorization to work because they lost work authorization sometime between the audit and issuance of the notice. Importantly, ICE says the notice itself does not allege wrongdoing by the employer.

The timing of this addition is noteworthy. Over the past year and a half, many employers have been navigating a rapidly changing work authorization landscape that has included the terminations of multiple Temporary Protected Status (TPS) designations as well as categorical humanitarian parole programs that have affected hundreds of thousands of individuals. 

At the same time, E-Verify has expanded its Status Change Report, providing participating employers with knowledge of invalidated employment authorization documents (EADs) associated with TPS, pending asylum cases, and certain green card applications in addition to the previously announced humanitarian parole revocations. 

Employer takeaway: This new notice adds another potential outcome for employers undergoing an ICE I-9 inspection. Although receipt of the notice does not itself mean that ICE has identified a violation, it may require the employer to promptly evaluate the affected employees' current work authorization and determine the appropriate next steps. 

3. ICE Clarifies How It Calculates Violation Percentages

The August fact sheet also makes a technical but potentially important clarification concerning civil penalties. Following an I-9 inspection, ICE may issue a Notice of Intent to Fine (NIF) for substantive violations, uncorrected technical or procedural failures, known hire violations, and/or continuing to employ violations. In simple terms, a NIF may therefore include both violations involving the I-9 itself and allegations that an employer knowingly hired or continued to employ an individual who was not authorized to work.

The revised guidance now expressly states that ICE will calculate the violation percentage separately for each applicable category. This is important because, according to past ICE guidance, agents were instructed to combine both paperwork and knowingly hire/continuing-to-employ violations, when calculating violation percentages. This new  approach could produce a significantly higher percentage and potentially higher penalties.

Employer takeaway: Penalty calculations can become complicated quickly, particularly when an inspection involves multiple types of alleged violations. While the revised guidance provides greater transparency, employers facing potential penalties should consider working with experienced immigration counsel to help understand how the methodology applies to their particular circumstances.

Conclusion

As employers consider this latest update to the ICE policy guidance, one important point remains unchanged: ICE has retained the substantive and technical violation classifications introduced in March 2026. As discussed in our earlier article, that guidance significantly narrowed the types of I-9 errors ICE identifies as correctable technical or procedural failures, while classifying a much broader range of errors as substantive violations that may result in immediate penalties. 

Several months later, ICE has now revised the fact sheet without retreating from those classifications. This provides another reason for employers to consider revisiting their I-9 practices through the lens of ICE's current inspection guidance. 

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