The U.S. Immigration & Customs Enforcement (ICE) issued new rules regarding substantive and technical violations of Form I-9 on March 16. 2026. These rules have changed several technical violations into substantive violations.  The difference is the amount of the fine per day if the violations are found in an ICE audit. 

In the past, specific violations, such as technical errors, did not require remediation prior to the start of an ICE I-9 audit. ICE would allow time to correct these errors during the audit process. But with the rules changing, and many technical errors being classified as substantive violations, these errors must be remediated before ICE issues their Notice of Inspection (NOI), which is sent to employers prior to the audit requesting employers to produce Forms I-9 and various employment-related documents.

Under ICE’s movement toward a stricter interpretation of INA § 274A(b), which requires employers to attest, under penalty of perjury, that they have examined the employee’s documentation. The Form I-9 must stand on its own.  All required document information must now be fully and accurately recorded. 

The fact sheet for the changes can be found here.  Below is a sample of the changes made from technical to substantive violations:

• Failure to ensure an employee provides date of birth (DOB) in Section 1;
• Failure to ensure an employee provides their USCIS number in Section 1;
• Failure to record a date in Section 1 next to employee signature;
• No expiration date listed in Section 1, Box 4, regardless of whether such expiration date is listed in Section 2, List A, and/or the Employment Authorization Document (EAD);
• Use of Spanish-language I-9 outside of Puerto Rico; 
• List A, B, or C data not fully recorded/incorrectly recorded in Section 2, such as name of document, number of documents, issuing authority, or expiration date, regardless of whether a copy of an underlying document, such as green card or driver’s license, was retained;  
• Provide the date of hire in the attestation portion of Section 2 of the Form I-9;
• Sign the Certification portion of Section 2;
• Date the Certification portion of Section 2;
• Failure to provide the first day of employment in the Certification;
• Failure to ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on Form I-9 at the time of completion in Supplement A;
• When utilizing remote verification procedure, the employer representative fails to check the alternative procedure box in Section 2 or Supplement B indicating that remote inspection was used and/or is not an active E-Verify participant when using the alternative procedure; and
• Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation that falls short of specific DHS standards.

If an employer uses an alternative procedure to complete Form I-9, it is now considered a substantive violation if they fail to check the alternative procedure box in Section 2. It is also a violation if the employer does not indicate that they are an active E-Verify participant or enrolled in a DHS-authorized non–E-Verify remote document examination program when selecting the option confirming use of a DHS-authorized alternative procedure.

The following are the remaining technical violations:

Section 1 

1. Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed.
2. Failure to ensure that an individual provides his or her other last names used (if any) or a physical address in Section 1 of the Form I-9. A missing email address or phone number in Section 1 will not constitute a violation.
3. Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security Number is correct.

Section 2 

1. Failure to record the employee’s complete name at the top of page 2.
2. Failure to provide the business name, or physical business address in Section 2 of the Form I-9.

Supplement A 

1. Failure to record the employee’s full name at the top of Supplement A.

Supplement B 

1. Failure to record the employee’s full name at the top of Supplement B.
2. Failure to record the employee’s new name (if applicable) in the applicable section.

Go to the fact sheet for more information as to these violations. 

As for fines, it is first determined by ICE a base fine amount by calculating the employer’s violation percentage.  Specifically, the number of substantive violations and uncorrected technical or procedural failures, along with knowingly hiring or continuing to employ violations, are divided by the number of Forms I-9 that should have been available for inspection. They also review the number of times the employer has been inspected and whether the case involves a first, second, or third-or-higher offense.

The fine ranges currently are:

• 9 paperwork violations can now result in civil fines ranging from $288 to $2,861 per Form I-9.

• For knowingly hiring, recruiting, referring, or continuing to employ unauthorized workers, first-offense penalties currently range from $716 to $5,724 per worker.  

• Second-offense penalties range from $5,724 to $14,308 per worker

• Third or subsequent offenses range from $8,586 to $28,619 per worker.

They are adjusted annually for inflation.

HR should make I-9 review a priority this year and ensure all who process I-9s are well trained. It would be also beneficial to consider using an I-9 electronic system to control compliance.  ASE does offer this service.  Otherwise, mistakes add up and could lead to substantive fines, which are unexpected hits on the HR budget.  Contact Anthony Kaylin for more information.

Source: USCIS 3/16/26, Littler 4/10/26, On Blick 4/15/26, Baker McKenzie 4/15/26