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ICE ON FIRE
Updated I-9 Guidance:
What HR Managers Need to Know
On March 16, 2026, U.S. Immigration and Customs Enforcement released an updated Form I-9 inspection fact sheet, classifying many I-9 errors as substantive violations. This distinction is important: technical or procedural failures usually allow at least 10 business days for correction, but substantive violations may result in a Notice of Intent to Fine without that opportunity.
What Changed:
The statutory framework remains the same, but the practical risk has changed. ICE now classifies more errors as substantive violations. Employer-side commentators call this a significant reclassification of errors previously seen as clerical or correctable.
Errors ICE Now Identifies as Substantive:
The fact sheet lists several substantive violations: failure to prepare or present Form I-9, late completion of Sections 1 or 2, use of the Spanish-language I-9 outside Puerto Rico, missing employee details in Section 1, incomplete List A, B, or C documentation, missing employer representative details in Section 2, missing preparer or translator information when required, and incomplete reverification or rehire information in Supplement B.
ICE also considers it a substantive violation to omit the alternative-procedure box when using an authorized method or to use the method without meeting E-Verify or DHS requirements.
Penalties and Retention:
Current penalties for I-9 paperwork violations range from $288 to $2,861 per violation, adjusted annually. ICE calculates penalties based on the number of substantive and uncorrected technical violations, then adjusts by up to 25% based on business size, good faith, seriousness, unauthorized worker involvement, and prior violations.
Employers must retain Form I-9 for each current employee and, for former employees, for at least three years after hire or one year after employment ends, whichever is later. As best practice, employers should keep I-9s and any retained supporting documents in a separate I-9 file or system, not in individual personnel files.
Take-Aways:
Do not assume HSI will treat minor I-9 mistakes as technical defects with an opportunity to fix them. When receiving a Notice of Inspection, employers have only three business days to provide requested I-9s, so HR should proactively audit I-9s, review remote onboarding, confirm electronic systems comply, and train staff. Employers unsure about compliance should consult employment or immigration counsel.
For further information, please contact Tim Bowles, Cindy Bamforth, or Helena Kobrin.
See also:
Cindy Bamforth
June 19, 2026
If you are an employer facing possible litigation, or have an employee issue on which you need immediate guidance, call us to set up a consultation, or submit your message.
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