On March 16, 2026, the U.S. Immigration and Customs Enforcement (ICE) published a revised Fact Sheet on Form I-9 inspections that expands the list of errors classified as “substantive” paperwork violations. While the penalty framework for violations remains unchanged, the new Fact Sheet departs from earlier guidance by drastically expanding the types of violations subject to penalty in the event of a DHS I-9 inspection, increasing liability for employers.
There have long been two “buckets” of errors in the completion of the Employment Eligibility Verification form (Form I-9): substantive and technical violations. Substantive violations cannot be corrected without risk of penalty. But technical or procedural errors can be corrected without risk of penalty, and employers selected for an ICE audit are given up to 10 days to correct them. If technical/procedural errors are uncorrected, a penalty can be assessed.
The prior guidance explaining what type of paperwork error constitutes a substantive or technical violation was based on a set of interim guidelines published internally by the predecessor to ICE, the Immigration and Naturalization Service (INS) on March 6, 1997. Published in what is known as the Virtue Memo, the guidelines had not been updated to reflect decades of changes to the Form I-9 or current enforcement realities. According to the Virtue Memo, a number of common errors were classified as merely “technical or procedural” failures eligible for correction without risk of penalty.
ICE’s revised Fact Sheet departs from the Virtue Memo and reclassifies many errors previously classified as technical as substantive violations. Employers may find some of the technical-to-substantive error reclassifications surprising, including:
- Failure to ensure that the employee provides a date of birth in Section 1.
- Failure to print the employer or authorized representative’s complete name and title in Section 2.
- Failure to provide the date of hire in Section 2. This change seems to conflict with still-active guidance on the website of U.S. Citizenship and Immigration Services. It provides that while an employer should input the employee’s anticipated start date when completing Section 2 before employment begins, if employment actually begins on a different date, the employer should correct the date by crossing out the expected start date and writing in the actual start date, dating and initialing the correction. It is unclear if ICE would consider such a correction a substantive error.
- Failure to document the title, document number and expiration date of a List A-C document, even if a legible copy of the document was attached to the Form I-9. The Virtue Memo provided that failure to list the applicable document details would not be a substantive violation if the employer attached a legible copy of the document(s) provided by the employee and examined by the employer. Now, those documents must be fully documented in Section 2 regardless of whether a copy of the documents is attached to the employee’s Form I-9.
The updated guidance also introduces substantive violations that had no counterpart in the Virtue Memo, including:
- Failure to mark the alternative procedure box in Section 2 or Supplement B when an employer uses a DHS-authorized alternative document examination procedure.
- Failure to meet standards for electronic completion, retention and signatures under 8 C.F.R. § 274a.2.
- Failure to be an active E-Verify participant when using the DHS-authorized alternative document examination procedure. Employers sometimes use the alternative procedure without also using E-Verify. The only way for employers with fully or partially remote work forces to permissibly inspect List A-C documents remotely is for the employer to be an active E-Verify participant and otherwise follow the steps outlined by DHS for remote inspection.
- Use of the Spanish-language version of the Form I-9 for employers/employees outside of Puerto Rico. While the Spanish-language version of the form can be used as a tool to assist Spanish-speaking employees in filling out the form, employees outside of Puerto Rico must fill out the English-language version.
In light of these changes, it is more important than ever for employers to conduct a self-audit of their Form I-9 records. Proactive remediation will start the clock on the five-year statute of limitations for substantive errors — which runs from correction of the error. Further, a self-audit will identify any gaps in an employer’s procedures, including with respect to the alternative document examination procedure and the requirements for electronic completion and retention of the forms. Additionally, companies engaged in a corporate transaction may wish to consider utilizing the guidance for M&A transactions. That guidance permits a successor employer to obtain entirely new Form I-9s for acquired employees rather than inheriting the predecessor’s forms, eliminating potential liability for substantive errors in the predecessor’s existing Form I-9 records going forward.
For questions about compliance with work authorization verification, Form I-9 and E-Verify requirements; how to conduct a self-audit of your organization’s Form I-9 and E-Verify records and procedures; or other immigration-related issues, contact the authors, your McGuireWoods contact or a member of the firm’s Employment Litigation, Labor-Management Relations or Government Investigations & White Collar Litigation Practice Groups.