Several Former Technical Violations Now Deemed Substantive

On March 16, 2026, Immigration and Customs Enforcement (ICE) published an updated fact sheet related to I-9 compliance and auditing. Notably, this fact sheet reclassifies a number of previously correctable Form I-9 deficiencies as substantive violations, which can result in monetary fines for employers during I-9 inspections.

I-9 violations are currently placed in one of the following two categories:

Substantive violations: Result in immediate monetary fines following inspection, with no allotted period for correction.
Technical/procedural violations: Minor deficiencies that an employer has 10 business days to correct before they become substantive violations.

According to the updated ICE fact sheet, the following technical Form I-9 violations identified in previous long-standing ICE guidance from 1997 and 2008 have now been reclassified as substantive violations:

Failure to provide an employee’s date of birth in Section 1.
Use of a Spanish-language Form I-9 outside of Puerto Rico.
Missing title of the employer or authorized representative.
Failure to date Sections 1 or 2.
Failure to provide an employee’s date of hire in Section 2.
Failure to include a preparer and/or translator’s complete name, address, signature, and date in Supplement A.
Failure to enter a re-hire date in Supplement B.
Procedural failures related to the 2023 remote document verification procedure, such as failing to check the alternative procedure box in Section 2 or Supplement B and failing to be an E-Verify participant at the time the alternative procedure was used.

Fines for substantive I-9 violations are subject to annual adjustments for inflation and are first calculated by dividing the number of substantive violations by the number of Forms I-9 that are to be presented for inspection. This base fine amount is then adjusted following an analysis of the employer’s business size, good faith, the seriousness of each violation, whether unauthorized aliens are employed by the company and the employer’s history of previous violations. Each of these factors can lead to a 5% increase or decrease in the amount of the fine issued. According to the most recent civil monetary penalty data published in a 2024 Final Rule, fines for substantive I-9 violations can currently range from $281 to $2,789.00 per violation.

This shift in I-9 policy has gone into effect without notice or comment and has the potential to create serious compliance-related issues for employers unaware of the newly added substantive violations. Because the above-mentioned violations can no longer be corrected prior to the issuance of a penalty, employers can expect a much stricter and narrower enforcement of I-9 inspections and audits by ICE moving forward.

Employers should ensure that they have comprehensive I-9 audit programs in place to promptly detect any errors that could result in fines or compliance-related issues. This includes the completion of regular or annual audits, proper training of human resources staff, and a continuous review and improvement of the hiring and onboarding process. Additionally, while many businesses have begun using automated electronic I-9 databases, it is important to recognize that these systems are also prone to errors, and employers should still perform the necessary due diligence to ensure the proper completion of each Form I-9.

Additional Assistance

For more information, please contact a member of our Immigration Practice Team or the Phillips Lytle attorney with whom you have a relationship.