What Employers Need to Know: ICE’s Expanded List of I-9 Substantive Errors and Penalties

The I-9 form was created in 1986 based on congressional legislation. It requires employers to timely inspect and record the work authorization documents of every new hire, as well as reverifications when needed. Employers that are enrolled in E-Verify are still required to complete a paper or digital I-9 for each employee. 

While ICE I-9 audits are statistically rare, due to increased staffing at the agency, audits may become more frequent.

In March 2026, ICE announced on its website that it has overhauled its I-9 audit process and compliance guidance, expanding the categories of substantive violations, narrowing the scope of correctable technical failures, and thereby expanding employers’ civil penalty calculations.

Fines for substantive errors are typically $2,500 per I-9 so the penalties can add up. Going forward, what typically would be a technical error that would not result in a fine will now be determined to be a substantive error. The bill could become quite hefty. 

As discussed below, employers are encouraged to review their I-9s for compliance. The statute of limitations for a substantive violation is five years which means liability continues for five years from the date of correction.

Key Changes Under the Updated Guidance

The updated guidance represents four principal shifts in enforcement posture:

1. Reclassification of Common Errors as Substantive Violations: Many I-9 errors previously treated as correctable technical failures, including dating errors, late document verification, incomplete Section 2 entries, and use of the Spanish-language form outside Puerto Rico, are now substantive violations carrying mandatory fines.
2. Remote Verification and Electronic I-9 Compliance: Errors in alternative document examination, such as failing to mark the “alternative procedure” box, lacking active E-Verify participation, and failure to meet the electronic I-9 standards in 8 C.F.R. § 274a.2(e) to (i), including audit trail, electronic signature, security, and legible-copy requirements.
3. Heightened Scrutiny of Supplement B: Previously routine Supplement B errors, missing rehire dates, late or incomplete reverifications, missing signatures, incorrect document information, and failure to mark the alternative procedure box, now carry mandatory fines. Failure to reverify before temporary employment authorization expires is treated with particular severity.
4. Civil Penalty Exposure: Penalty amounts are set by statute and adjusted annually for inflation; each substantive violation and each uncorrected technical failure is a separate chargeable offense. See the Federal Register for more details.

Notices Employers May Receive During an I-9 Audit

An I-9 audit begins when ICE serves a Notice of Inspection (NOI), giving the employer at least three business days to produce Form(s) I-9 and supporting documentation (e.g., payroll records, employee lists, and business licenses). During and after the audit, ICE may issue the following notices:

• Notice of Technical or Procedural Failures: Identifies correctable errors and provides at least ten business days to fix them. Uncorrected failures become substantive violations with mandatory fines. Employers should prioritize corrections within this window.
• Notice of Discrepancies: Indicates that Homeland Security Investigations (HIS) cannot confirm work eligibility from the documents provided; the employer should give the employee a copy and an opportunity to present additional documentation.
• Notice of Suspect Documents: Informs the employer that employee documentation appears invalid or unrelated to the employee. The employer and employee may respond with evidence of valid work authorization.
• Notice of Inspection Results (Compliance Letter): Confirms the employer is in compliance.
• Warning Notice: Issued when substantive violations exist but future compliance is expected. A Warning Notice will not be issued if the employer has a prior enforcement history, failed to correct technical failures within the allotted period, committed substantive violations, or if there is evidence of fraud (e.g., backdating). A follow-up audit may occur.
• Notice of Intent to Fine (NIF): The most serious outcome, issued for substantive violations, uncorrected technical failures, and knowing-hire or continuing-to-employ violations. The NIF process and hearing rights are discussed below.

Substantive Violations: Summary of Key Categories

The following are substantive violations per the updated guidance:

• General: Failure to prepare or present the Form I-9; failure to ensure timely completion of Section 1 and Section 2 (and Supplement B, if applicable); use of the Spanish-language form outside Puerto Rico; and failure to meet electronic I-9 standards under 8 C.F.R. § 274a.2(e), (f), (g), (h), and (i).
• Section 1: Failure to ensure the employee provides a legal name and date of birth; checks the correct citizenship/immigration status box; completes required alien registration, admission number, or foreign passport fields; signs the attestation; and dates Section 1.
• Section 2: Failure to examine and verify acceptable documents within three business days of hire; record required document information; handle receipts and replacement documents within the 90-day period; mark the alternative procedure box; maintain active E-Verify participation when noting an alternative procedure; print the employer’s name and title; provide the date of hire; and sign and date the Certification.
• Supplement A: Failure to ensure the preparer or translator provides a complete name, address, signature, and date.
• Supplement B: Failure to reverify by the authorization expiration date; provide the rehire date; record reverification document information; handle replacement documents within the 90-day period; print the employer’s name, sign, and date the reverification on or before the expiration date; and mark the alternative procedure box.

Technical and Procedural Failures

The following errors are correctable within the ten-business-day cure window; if uncorrected, they become substantive violations:

• Using an outdated Form I-9 version.
• Omitting the employee’s other last names or physical address in Section 1 (a missing email or phone number is not a violation).
• An incorrect Social Security Number when enrolled in E-Verify.
• Omitting the employee’s name at the top of page 2, Supplement A, or Supplement B.
• Omitting the business name or address in Section 2.
• Failing to record the employee’s new legal name in Supplement B.

For the full list, please visit I-9 Fact Sheet.

How Fines Are Calculated

Civil penalty amounts are adjusted annually for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The applicable penalty range is determined by the date ICE serves the NIF. Consult the current Federal Register for updated amounts.

ICE calculates the base fine by dividing chargeable violations by the total number of I-9s that should have been presented; the resulting percentage sets the base fine range, which may shift based on whether it is the employer’s first, second, or subsequent offense. Five statutory factors then adjust the base fine: (1) business size, (2) good faith, (3) seriousness, (4) involvement of unauthorized aliens, and (5) history of previous violations. Each factor can move the fine up or down by five percent, for a cumulative adjustment of plus or minus twenty-five percent. Good faith, demonstrated through proactive self-auditing, training, and prompt correction, is the factor most within the employer’s control.

If You Receive a Notice of Intent to Fine

The NIF outlines the charges, specifies the alleged violations, and states the fine amount.

Under 5 U.S.C. §§ 554–557, the employer may request a hearing before an Administrative Law Judge at the Office of the Chief Administration Hearing Officer (OCAHO) within the Executive Office for Immigration Review. The request must be made within 30 calendar days of receipt.

If a timely hearing request is filed, the employer may request settlement negotiations with ICE before the hearing. If a written request for a hearing is not timely received, ICE will issue a Final Order, and there is no appeal from a Final Order.

If the parties reach agreement, ICE will not file a complaint with OCAHO. If not, ICE will file a complaint to initiate administrative proceedings.

What Employers Should Be Doing Now

Given the expanded violation classifications, employers should consider taking the following steps:

1. Conduct an internal I-9 self-audit focusing on missing signatures and dates, incomplete Section 2 entries, reverification accuracy, Supplement B maintenance, and remote verification documentation.
2. Train HR staff on the updated substantive violation standards, document review procedures, and reverification requirements.
3. Implement reverification tracking to ensure reverification is completed before temporary employment authorization expires. Consider enrolling in E-Verify to streamline verification and reduce compliance exposure.
4. Verify I-9 retention compliance (three years from the first day of employment or one year from the date employment ends, whichever is longer). A more simplified rule is to keep the I-9 throughout employment and then for three years after termination.
5. Digital I-9 Software: It is highly recommended to use digital I-9 software rather than paper I-9. The software will eliminate most I-9 errors other than a timeliness error. It should be noted that any digital I-9 software must comply with ICE’s strict standards that it has an electronic audit trail. Merely scanning your paper I-9s is not sufficient.