ICE Reclassifies Form I-9 Violations / Key Reminders For I-9 Procedures

08 / 10 / 2026

Overview

For nearly 30 years, employers and lawyers have generally understood Form I-9 paperwork violations using a two-part framework: substantive violations (which can trigger immediate penalties) and technical or procedural violations (which traditionally come with a statutory chance to correct). This framework has guided employer compliance practices, internal audits and remediation, and the overall structure of Form I-9 inspections for years. However, ICE’s recently updated Form I-9 Inspection Fact Sheet suggests that many errors once treated as technical are now deemed substantive and immediately subject to penalty, leaving fewer violations eligible for correction without a fine. Now is the time to review your company’s I-9 verification procedures (and possibly conduct an internal audit of your I-9 records) to make sure you remain in compliance.

Technical Changes Now Classified as Substantive*

Section 1 of the Form I-9

I-9 Error: No date of birth
Prior Classification: Technical // New Classification: Substantive
I-9 Error: No A-number for employee attesting to LPR
Prior Classification: Technical if A-number is in Section 2 or 3, or where a legible copy of the document has been retained // New Classification: Substantive with no apparent exception
I-9 Error: Section 1 employment authorization expiration date (where required)
Prior Classification: Not defined in the relevant memo or subsequent ICE guidance // New Classification: Substantive
I-9 Error: No employee signature date
Prior Classification: Technical // New Classification: Substantive

Section 2 of the Form I-9

I-9 Error: No document title, issuing authority, document number(s) and/or expiration date(s) (if any) of a List A, B, or C document (including a replacement document)
Prior Classification: Technical if a legible copy of the document(s) has been retained // New Classification: Substantive with no apparent exception
I-9 Error: Failure to verify a replacement document within the 90-day period described following a document receipt
Prior Classification: Not defined in the relevant memo or subsequent ICE guidance // New Classification: Substantive
I-9 Error: No title of the employer or authorized representative
Prior Classification: Technical // New Classification: Substantive
I-9 Error: No date of hire
Prior Classification: Technical // New Classification: Substantive
I-9 Error: No employer or authorized rep signature date
Prior Classification: Technical // Prior Classification: Substantive

Form I-9 Supplements

I-9 Error: Incomplete preparer and/or translator data in Supp. A
Prior Classification: Technical // New Classification: Substantive
I-9 Error: No date of rehire in Supp. B where applicable
Prior Classification: Technical // New Classification: Substantive
I-9 Error: No document title, document number(s), and/or expiration date(s) (if any) of a List A or C document (including a replacement document) in Supp B
Prior Classification: Technical if a legible copy of the document has been retained // New Classification: Substantive with no apparent exception
I-9 Error: Failure to verify a replacement document within the 90-day period described following a document receipt in Supp B
Prior Classification: Not defined in the relevant memo or subsequent ICE guidance // New Classification: Substantive

Notably, the revised fact sheet appears to remove the longstanding interpretive carve-out under which omissions of certain document details—such as a document number or expiration date—could be treated as technical or procedural if a legible copy of the document was retained and produced during inspection. Instead, the revised fact sheet appears to classify those omissions as substantive even when document copies are retained. If applied as written, this would mark a significant shift from prior guidance.

Process-Based Substantive Violations

There now appears to be a greater emphasis on certain process-based failures:

I-9 Error: Spanish-language Form I-9 used outside Puerto Rico
Prior Classification: Technical // New Classification: Substantive
I-9 Error: Failure to check the alternative procedure box in Section 2 if the employer used an alternative procedure authorized by DHS to examine documents (See “Remote Document Examination” below)
New Classification: Not defined by ICE // Prior Classification: Substantive
I-9 Error: Failure to be an active E-Verify participant or registered in a DHS Non-E-Verify Remote Document Examination Form I-9 program when indicating that the alternative procedure was used
Prior Classification: Not defined by ICE // New Classification: Substantive
I-9 Error: Failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) related to an electronically generated or stored I-9
Prior Classification: Not defined by ICE // New Classification: Substantive

Newly-Classified Technical Violations

I-9 Error: Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed
Prior Classification: Not defined by ICE // New Classification: Technical
I-9 Error: Failure to ensure that an individual provides his or her other last names used, if any
Prior Classification: Not defined by ICE // New Classification: Technical
I-9 Error: Failure to, when enrolled and utilizing E-Verify for the employee, ensure that the employee’s Social Security number is correct
Prior Classification: Not defined by ICE // New Classification: Technical
I-9 Error: Failure to record the employee’s complete name at the top of page 2, Supplement A, or Supplement B, as applicable
Prior Classification: Not defined by ICE // New Classification: Technical
I-9 Error: Failure to record the employee’s new name, if applicable, in Supplement B
Prior Classification: Not defined by ICE // New Classification: Technical

*Information provided by the American Immigration Lawyers Association (AILA).

Remote Document Examination (Optional Alternative Procedure to Physical Document Examination for E-Verify Employers ONLY)

Per USCIS, employers who participate in E-Verify, and are in good standing, are able to remotely examine their employee’s documentation using a DHS-authorized alternative procedure at their E-Verify hiring sites. Please note that employers who are not enrolled in E-Verify (or are not in good standing) MUST physically (in-person) examine their employee’s documentation when completing the I-9.

Under current DHS guidance, employers enrolled in E-Verify may use the authorized alternative procedure for remote examination of I-9 documents, including through an authorized representative or third-party vendor acting on the employer’s behalf (e.g. Equifax, i9 Intelligence, OutSolve, WorkBright, etc.). However, if an employer elects to use the alternative procedure at a particular E-Verify hiring site, it must apply that procedure consistently to all employees within the applicable category at that site. Employers should avoid selectively offering remote verification based on citizenship, immigration status, national origin, or other protected characteristics, as inconsistent application could create discrimination concerns.

Importantly, the policy does not require employers to use the same verification method for all workers regardless of work arrangement. Employers may distinguish between fully remote employees and employees who work onsite or in a hybrid capacity. For example, if an employer’s Boston office is an E-Verify hiring site and the employer decides to use the DHS-authorized alternative procedure (remote inspection via video call and document copies), the employer cannot say:

“We’ll allow remote I-9 verification for U.S. citizens, but not foreign nationals,” or
“We’ll do remote verification only for executives,” or
“We’ll require in-person inspection for employees who look or sound foreign.”

That would create discrimination risk based on citizenship, immigration status, or national origin. USCIS is trying to prevent selective treatment.

However, the rule does not mean that every employee must always be treated identically regardless of work arrangement. The USCIS Handbook for Employers M-274: Guidance for Completing Form I-9 specifically says that employers may distinguish between fully remote employees, and onsite or hybrid employees.

So, an employer may lawfully adopt a policy such as:

Remote employees use the alternative remote I-9 procedure;
Onsite/hybrid employees use the physical inspection I-9 procedure.

Qualifying employers who choose to examine an employee’s documentation remotely must be enrolled in good standing in E-Verify, and must complete the following steps:

Examine copies (front and back, if the document is two-sided) of Form I-9 documents or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual. The employee must first transmit a copy of the document(s) to the employer (per Step 1 above) and then present the same document(s) during the live video interaction;
Indicate on Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification in Supplement B, as applicable; and
Retain a clear and legible copy of the documentation (front and back if the documentation is two-sided).

In the event of a Form I-9 audit by a federal government official, the employer must make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

Potential Consequences for Failure to Comply

U.S. Immigration and Customs Enforcement (ICE) is the principal government agency tasked with ensuring I-9 compliance. The administrative inspection process is initiated by ICE with the service of a Notice of Inspection (NOI) upon an employer. An ICE agent from the Homeland Security Investigations (HSI) unit conducts the inspection of I-9 files.

Under federal law, U.S. employers may face civil monetary penalties for Form I-9 violations, including for knowingly hiring or continuing to employ unauthorized workers, as well as for substantive violations or uncorrected technical/procedural errors. These penalties are adjusted annually for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. ICE determines the applicable penalty range based on the date the Notice of Intent to Fine (NIF) is served on the employer, and the current minimum and maximum fine amounts are published in the Federal Register.

In calculating penalties, ICE first determines the employer’s “violation percentage” by dividing the number of violations by the number of Forms I-9 that should have been available for inspection. That percentage, together with whether the matter is a first, second, or subsequent offense, establishes the applicable base fine range. ICE then evaluates five statutory factors to determine whether the penalties should be increased or reduced: (1) the size of the business, (2) the employer’s good faith efforts to comply, (3) the seriousness of the violations, (4) whether unauthorized workers were involved, and (5) the employer’s history of prior violations.

Each of these five factors may increase or decrease the base fine by 5%, resulting in a potential cumulative adjustment of up to 25% above or below the base penalty amount. Because penalties can escalate significantly, employers should ensure that Form I-9 completion, retention, and reverification procedures are carefully monitored and audited on a regular basis. Current penalty information can be found in the Federal Register by searching for “adjust for inflation DHS civil monetary penalties.”

Employers should regularly review the USCIS Handbook for Employers M-274: Guidance for Completing Form I-9. This is the primary manual for employers, providing the necessary guidance for completing and maintaining Form I-9.