Form I-9 Enforcement: Minor Mistakes Could Now Cost Employers Major Fines

On March 17, 2026, U.S. Immigration and Customs Enforcement (ICE) issued new guidance that dramatically changes I-9 compliance. What was formerly considered “technical/procedural violations” have now been reclassified as “substantive violations”. This means that minor mistakes that may have previously been treated as correctable could now be subject to fines following a Form I-9 inspection.

Basics of the Form I-9

The Form I-9 Employment Eligibility Verification Form is used to verify the identity and employment authorization of individuals hired in the United States. Every employer, regardless of size or industry, must ensure that they employ individuals who may legally work in the U.S., which includes U.S. citizens, noncitizen nationals, lawful permanent residents, and others who are authorized to work. Employers are required to verify the identity and employment authorization of each person they hire, complete and retain a Form I-9 for each employee, and refrain from discriminating against individuals on the basis of national origin, citizenship, or immigration status.

Employees must complete Section 1 of the form by the first day of employment. This section requests their legal name, address, date of birth, citizenship or immigration status, and social security number, or a number issued by the U.S. Citizenship and Immigration Services (USCIS). In addition to verifying that the employee has completed all of Section 1, employers must complete Section 2 of the Form I-9, which requires documentation that verifies that the employee is authorized to work in the United States. Examples of acceptable forms of documentation include a U.S. Passport, permanent resident card, driver’s license or identification (ID) card, military card, social security card, or a certified copy of a birth certificate. This section must be completed within three business days from the employee’s start date.

Form I-9s must be kept in a file separate from the employee’s personnel file and retained for three years after the date of hire, or one year after the date of termination, whichever is later.

Types of Violations

Mistakes on any form of documentation is to be expected. In reference to I-9s, historically, the U.S. Citizenship and Immigration Services (USCIS) categorized these mistakes as violations, which fall into two categories: technical/procedural, or substantive. Technical/procedural violations are minor, correctable errors that may include missing information on the form, such as the date of birth, date of hire, or a missing signature. Provided that an employer acted in good faith, technical/procedural errors may be corrected within 10-business days without penalty.

A substantive violation is serious and unable to be corrected. This would include a failure to verify an employee’s authorization to work by not completing the Form I-9, failure to provide an I-9 during an inspection, or a failure to verify work status through the E-Verify system. Substantive violations may result in immediate monetary fines, up to $2,500 per incorrect Form I-9.

The new I-9 guidance has reclassified what was previously considered technical/procedural violations as substantive violations, therefore decreasing the margin of error for employers. Examples of these changes are noted in the following chart:

How To Stay Audit Ready

The best practice for ensuring compliance with federal regulations regarding Form I-9s would be to conduct an internal audit. This starts with utilizing the official U.S. Citizenship and Immigration Services (USCIS) Handbook for Employers (M-274). This resource ensures that employers are completing the forms correctly and, in their entirety, and is a great tool to train human resources staff on current standards and how to correct mistakes that are found through an internal audit.

Secondly, before receiving a Notice of Inspection (NOI), employers should always prepare for an external audit by regularly reviewing the federal government’s current inspection process. This may be found on www.ice.gov under ICE fact sheets.

By closely monitoring the correct completion of Form I-9s, auditing these forms regularly, keeping staff up-to-date on the new rules, and correcting any errors immediately, employers may mitigate the risk of a costly audit.

For additional information on Form I-9 audits, please contact us at www.newfocushr.com.

Written by:

  • Imani Murphy, MSM, SHRM-SCP
    Sr. HR Consultant
    6/12/2026

Sources:

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