Form I‑9 compliance has been a recurring topic in our prior updates. In the newest development, ICE issued updated guidance via this fact sheet on March 16, 2026, materially expanding what constitutes a substantive violation. As a reminder, the Immigration Reform and Control Act of 1986 (“IRCA”) requires all employers to verify the identity and employment authorization of every employee, complete Form I‑9 within strict timelines, retain it for the required period, and produce it promptly during an ICE inspection. Under ICE’s revised framework, many errors that were previously considered technical and, therefore, correctable within 10 business days, are now immediately sanctionable, marking a significant shift in long‑standing compliance expectations.
One major change is ICE now treats missing or incomplete information in Section 1 as substantive. This includes missing Alien Registration Numbers or USCIS Numbers when required, missing employment authorization expiration dates for individuals authorized to work until a specific date, and missing dates of birth. Historically, these errors could be cured if the employer retained a copy of the underlying document or if the information appeared elsewhere on the form. That is no longer the case.
Section 2 errors have also been reclassified. Missing employer representative names or titles, missing dates of hire, and incomplete document information, such as missing document titles, issuing authorities, document numbers, or expiration dates, are now substantive violations. Even if the employer retains copies of the documents, ICE will treat these omissions as immediately worthy of a fine.
ICE also expanded the list of substantive violations in the supplements. In Supplement A, any failure to provide complete preparer/translator information is now substantive. In Supplement B, failing to mark the “alternative procedure” box when remote examination is used is substantive, as is improper use of the alternative remote examination procedure by employers not enrolled in E‑Verify or a DHS‑approved program. Importantly, ICE also clarified that use of the Spanish‑language Form I‑9 outside Puerto Rico is a substantive violation.
These expanded definitions carry significant financial consequences. Substantive violations can result in civil fines of up to $2,861 per Form I‑9, and small, repeated errors can quickly compound into substantial liability for employers with large workforces. Once ICE serves a Notice of Inspection (NOI), employers have only three (federal) business days to produce their Forms I‑9. Based on what we have been seeing, the government is not extending that three‑day window. As a result, employers who are unprepared or who have legacy Forms I‑9 containing errors that were previously considered technical may face heightened exposure under the new framework.
Given that many previously correctable errors now result in immediate sanctions with no opportunity to cure, employers should take proactive steps to reduce their exposure. Conducting internal I‑9 audits, updating HR training, and reviewing reverification practices are essential measures.
Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is ready to assist clients with employment law matters. To connect with our team, call 605-336-2880, email [email protected], or find a specific lawyer here.