March 2026

In March 2026, with no public notice, U.S. Immigration and Customs Enforcement (ICE) updated its Form I-9 Inspection fact sheet, reclassifying several common I-9 errors from “technical” errors to “substantive” violations, upending guidance in place for nearly thirty years. The result of these reclassifications is that simple mistakes and omissions on Form I-9 that an employer was previously allowed to correct are now considered substantive and are subject to automatic penalties. 

Some of these newly substantive errors include, but are not limited to: 

  • Use of the Spanish-language I-9 form outside of Puerto Rico. 
  • Missing employee date of birth in Section 1. 
  • Missing employee USCIS/alien registration number (when applicable) in Section 1. 
  • Missing date next to employee’s signature in Section 1. 
  • Missing date of hire in Section 2. 
  • Missing name/title of the employer representative or authorized representative in Section 2. 
  • Incomplete List A, B, or C data in Section 2, even when document copies were retained. 
  • Incomplete preparer/translator data in Supplement A. 
  • Missing rehire date in Supplement B. 
  • Deficiencies associated with electronic I-9 software including audit trails, electronic signature protocols, etc. 
  • Failure to check alternative procedure box/not enrolled in E-Verify when using remote verification.  
Form I-9 compliance  

The Form I-9 compliance regime is not new.  Since November 7, 1986, under the Reagan administration, employers have been required to use Form I-9 (Employment Eligibility Verification) to verify that new employees are authorized to work in the United States.   

The purpose of Form I-9 is to verify the identity and employment eligibility of individuals hired for employment in the United States. Form I-9 requires an employee to indicate the basis for their employment eligibility and provide supporting documentation as evidence of identity and employment eligibility for inspection and confirmation by their employer.  Both employees and employers must complete the form. 

Forms I-9 must be completed for all individuals working in the United States, both immigrants and those born in the US. Employers must retain Forms I-9 for all current employees and for former employees for a certain period of time as required by law.  

Form I-9 audits on the rise

ICE enforces the Form I-9 requirements through workplace inspections, known as Form I-9 audits.  Audits are initiated by issuance of a Notice of Inspection (“NOI”), which requires employers to provide all Forms I-9 on file, as well as related employment records. Form I-9 violations are classified as either technical or procedural errors or as substantive violations. Technical/procedural errors may be corrected within ten days without imposition of a penalty, while substantive violations result in automatic fines/penalties imposed on the employer. See below for a list of current penalty amounts, which can be significant.  

Under the Trump administration, along with other increased enforcement actions against immigrants, ICE has dramatically increased worksite enforcement, including Form I-9 audits and worksite raids.  Signed into law on July 4, 2025, the One Big Beautiful Bill Act (OB3) allocated over $170 billion for immigration and border enforcement and ICE’s workforce grew by 120% over a four-month recruitment campaign, with more than 12,000 new officers added by the end of 2025.  

In the first half of 2025, the rate of ICE Form I-9 audits was at least ten times the rate of 2024, and even more chilling, a memorandum of understanding signed in April 2025 allows ICE to access IRS employer records, and the Department of Homeland Security (DHS) has requested access (not yet granted) to another federal database containing employment records on virtually every worker in the United States.    

If your organization receives an NOI, contact legal counsel immediately, as the deadline for providing all required documents can be as short as three business days.  Do not, under any circumstances, change, revise, or otherwise attempt to “clean-up” a Form I-9 before providing it to ICE. In the meantime, prior to receiving an NOI, there are steps your organization can take to shore up compliance.  

Mitigate risk by completing a Form I-9 self-audit  

Given this massive increase in Form I-9 audits, ensuring that your organization is in compliance with Form I-9 requirements is crucial.  Self-audits are a voluntary process in which an employer conducts its own internal audit of its Form I-9 compliance. These audits can help reduce the risk of an organization incurring penalties during a formal ICE Form I-9 audit and should be performed by a trained employee or outside consultant.  Audits must not be retaliatory or discriminatory (for example, employers may not solely audit employees of certain national origins, or employees who reported a workplace violation).   

During a self-audit, the organization should:   

  • Verify that it has Forms I-9 on file for all current employees.  
  • Verify that it has all required Forms I-9 on file for former employees (must be retained until the later of (a) three years from the date of hire, or (b) one year from the date of employee’s last day of employment).  
  • Verify that Forms I-9 on file are properly completed.  
  • Correct all Forms I-9 that can be corrected (do not conceal corrections or backdate the form).  Only employees may correct Section 1 errors. 
  • If the self-audit discloses substantive compliance issues, the organization should immediately work with immigration counsel to take corrective action.  

For more information on conducting a self-audit, see the following: