Recent ICE Enforcement Changes Affect Employer Compliance in Completing Form I-9

For many years, the definition of substantive and technical violations in properly completing Form I-9 allowed employers to correct many inaccuracies without fines that were so-called “technical” violations rather than “substantive” violations.  There is a detailed checklist of substantive and technical errors set forth in what has been called the Virtue Memo, a 1997 memorandum published by the Immigration and Naturalization Service.  On March 16, 2026, however, Immigration and Customs Enforcement (ICE) updated its Form I-9 Inspection Fact Sheet to expand the scope of what constitutes a substantive violation.

The updated Fact Sheet broadens the definition of substantive violations to include previously correctable technical errors, which now include incomplete Section 1 fields, incomplete or incorrect recording of Section 2 documentation details, and deficiencies in the preparer and translator certification.  The current Fact Sheet, however, classifies these and other common clerical errors historically considered to be technical violations, to substantive violations subject to an immediate fine.  The updated Fact Sheet also classifies certain areas related to missing or incomplete information on Form I-9 as substantive errors, whereas previously they were not considered to be violations if the employer retained a legible copy of the relevant employee document.

Editor’s Note: The bottom line of these changes is that employers will face increased exposure to civil penalties ranging from $288 to $2,861 for a violation, with reduced ability to cure deficiencies during a government investigation.  The result is that employers should increase their internal compliance programs and audits and  have appropriate I-9 protocols. 

This article is part of our June 2026 Newsletter. 

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