ICE Issues New Fact Sheet on I-9 Violation Classifications

Quick Hits

• In March 2026, ICE published a fact sheet identifying new Form I-9 substantive errors which were previously held out to be technical violations.
• Substantive errors, which cannot be corrected during an I-9 audit, pose a significant financial burden on employers with fines ranging from $288 to $2,861 per form violation.
• Internally auditing Form I-9s can help reduce potential exposure in the event of an audit.

Failure to properly prepare a Form I-9 could expose employers to significant civil and criminal penalties.

Employers are required to verify the identity and employment eligibility of employees hired on or after November 6, 1986, using an Employment Eligibility Verification, also known as the Form I-9. Homeland Security Investigations (HSI) conducts administrative inspections of employers’ compliance with this requirement, beginning with the service of a Notice of Inspection (NOI). The NOI provides employers with three business days to produce all Form I-9s requested along with additional documentation, including but not limited to, an employee roster and tax/payroll data.

During the inspection process, the auditor locates technical or procedural failures on the Form I-9s produced and affords employers with ten business days to make corrections. The technical violations are minor, correctable errors in Form I-9 completion that do not relate directly to an employee’s authorization to work. At the conclusion of the inspection process, the auditor will also note substantive violations when issuing the written notification of its findings. Substantive violations are serious, noncorrectable errors in Form I-9 which thereby directly relate to and question the employee’s authorization to work. Note, if technical violations are left uncorrected during the inspection process, they become substantive violations.

In recent years, HSI increased its Form I-9 inspections, with a key focus on the construction, agriculture, manufacturing, and hospitality industries. Coinciding with this increase in inspections, ICE released a Form I-9 Inspection Under Immigration and Nationality Act § 274A fact sheet identifying substantive and technical violations associated with the preparation of the Form I-9. Notably, when compared to prior guidance, ICE’s newly published fact sheet reallocated some errors from the technical box to the substantive box. Below please find breakdowns specifically identified in the new fact sheet, detailing the errors based on section, noting where the reallocation occurred.

General Form I-9 Violations
Category	Substantive Violations	Technical or Procedural Failures
Form Preparation	Failure to prepare the Form I-9.	Failure to use a version of the Form I-9 that is current at the time any part of the form is initially completed.
Inspection Presentation	Failure to present the Form I-9 for inspection upon request (8 C.F.R. § 274a.2(b)(3)).	—
Timeliness	Failure to ensure the timely preparation of Section 1 and/or failure to timely prepare Section 2 (and/or Supplement B, if applicable).	—
Spanish-Language Version	Completion of a Spanish-language version of the Form I-9 outside of Puerto Rico.	—
Electronic Standards	Failure to meet the standards for electronic completion, retention, documentation, security, reproduction, and electronic signatures as set forth in 8 C.F.R. § 274a.2(e)–(i).	—

Section 1 Violations
Category	Substantive Violations	Technical or Procedural Failures
Name and Date of Birth	Failure to ensure the employee completes his or her printed or typed legal name and date of birth.	—
Other Last Names / Address	—	Failure to ensure an individual provides other last names used (if any) or a physical address in Section 1 (missing email or phone number does not constitute a violation).
Citizenship/Immigration Status Attestation	Failure to ensure the employee checks only one box attesting to citizenship status (U.S. citizen, noncitizen national, LPR, or alien authorized to work).	—
Alien Registration Number (LPR)	Failure to ensure the employee completes the Alien Registration Number/USCIS Number field next to “A lawful permanent resident.”	—
Alien/Admission Number (Authorized Alien)	Failure to ensure the employee completes the Alien Registration Number/USCIS Number field, Form I-94 Admission Number field, or (if applicable) the foreign passport number/country of issuance and employment authorization expiration date.	—
Employee Signature	Failure to ensure the employee signs the attestation portion of Section 1.	—
Employee Date	Failure to ensure the employee dates Section 1. (previously technical)	—
Social Security Number (E-Verify)	—	When enrolled in E-Verify, failure to ensure the employee’s Social Security Number is correct.

Section 2 Violations
Category	Substantive Violations	Technical or Procedural Failures
Document Verification	Failure to verify a proper List A document or proper List B and List C documents within three business days following the date of hire, by physically examining originals and determining genuineness.	—
Recording Document Information	Failure to record the document title, issuing authority, document number(s), and/or expiration date(s) of acceptable documents.	—
Replacement Document Recording	Failure to record the document information for a replacement document and verify it within the 90-day period for receipts issued for lost, stolen, or damaged documents.	—
Alternative Procedure Box	Failure to mark the alternative procedure box if the employer used an alternative procedure authorized by DHS.	—
E-Verify / DHS Program Enrollment	Failure to be an active E-Verify participant or registered in a DHS Non-E-Verify Remote Document Examination program when checking the alternative procedure box.	—
Employer Name & Title	Failure to print the complete name and title of the employer or authorized representative. (previously technical)	—
Date of Hire	Failure to provide the date of hire in the attestation portion of Section 2. (previously technical)	—
Employer Signature	Failure to sign the Certification portion of Section 2.	—
Employer Date	Failure to date the Certification portion of Section 2. (previously technical)	—
Employee Name (Top of Page 2)	—	Failure to record the employee’s complete name at the top of page 2.
Business Name/Address	—	Failure to provide the business name or physical business address in Section 2.

Supplement A Violation
Category	Substantive Violations	Technical or Procedural Failures
Preparer/Translator Certification	Failure to ensure the preparer and/or translator’s complete name, address, signature, and date are provided when a preparer/translator assisted the employee. (previously technical)	Failure to record the employee’s full name at the top of Supplement A.

Supplement B Violations
Category	Substantive Violations	Technical or Procedural Failures
Reverification Timeliness & Document Exam	Failure to date Supplement B not later than the expiration of temporary employment authorization and verify continued eligibility by physically examining original acceptable documents.	—
Date of Rehire	Failure to provide the date of rehire in Supplement B. (previously technical)	—
Recording Document Information	Failure to record the document title, document number(s), and/or expiration date(s) of acceptable documents.	—
Replacement Document Verification	Failure to record replacement document information and verify within the 90-day receipt period.	—
Employer Name, Signature & Date	Failure to print the complete name, sign, and date the reverification portion on or before the expiration of temporary employment authorization.	—
Alternative Procedure Box	Failure to mark the alternative procedure box if the employer used an alternative DHS-authorized procedure.	—
E-Verify / DHS Program Enrollment	Failure to be an active E-Verify participant or registered in a DHS program when checking the alternative procedure box.	—
Employee Name (Top of Supplement B)	—	Failure to record the employee’s full name at the top of Supplement B.
New Name	—	Failure to record the employee’s new name (if applicable) in the applicable section.

Key Takeaways

With the introduction of newly-designated substantive errors combined with increased inspection activity, there is an increased potential for exposure to employers flowing from the preparation of Form I-9s. As published in the Federal Register, substantive violation fines range from $288 to $2,861 per Form I-9. Employers may want to conduct an audit of their Form I-9s to demonstrate compliance with federal law.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will publish updates on the Immigration blog as additional information becomes available.

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