ICE significantly modifies I-9 penalties

On March 16, 2026, Immigration and Customs Enforcement (ICE) updated its Form I-9 inspection fact sheet by recategorizing numerous I-9 errors to expand the number of violations that may result in fines. The change—made without any notice or rulemaking effort—marks a significant change in I-9 enforcement policy and significantly increases the potential for large fines and penalties for employers—even for minor and easily correctable errors on their I-9 forms.

Some errors now reclassified as substantive

Since 1997, ICE has adhered to the “Virtue Memorandum,” which divides I-9 errors into two categories: substantive violations and technical/procedural violations. Substantive violations are subject to a fine. For technical and procedural violations, an employer has usually been afforded a 10-business-day cure period to correct the error before any fine is applied. The new fact sheet, however, reclassifies many technical violations or procedural violations as substantive violations. These errors will now be subject to monetary penalties.

These new “substantive” errors include:

• Missing employee date of birth, A-Number/USCIS number, I-94 number, or work authorization expiration date in Section 1;

• Missing “other last names used” or physical address in Section 1;

• Incorrect/missing Social Security number for E-Verify employers;

• Incomplete List A/B/C document information in Section 2 (title, number, expiration);