Top 5 Things Employers Should Know About ICE’s Recent Form I‑9 Enforcement Changes

Recently, U.S. Immigration and Customs Enforcement (ICE) quietly and significantly revised its Form I‑9 Inspection fact sheet without Federal Register Notice, proposed rulemaking or public announcement. These revisions overturn key enforcement principles that have governed I-9 compliance for almost 30 years, materially change how Form I‑9 violations are classified and substantially increase employers’ civil penalty exposure during inspections. Employers should be aware of the following key developments:

1. ICE Has Reclassified Many Long‑Standing “Technical” Errors as “Substantive” Violations

Under ICE’s updated guidance, numerous Form I‑9 errors that were historically treated as technical or procedural, and therefore curable within a 10‑business‑day period, have been reclassified as substantive violations and may result in immediate monetary penalties. Employers therefore should not rely on post-Notice of Inspection remediation as a primary compliance strategy, as they will not be afforded the opportunity to cure these deficiencies during inspection.

Examples of errors now treated as substantive include, among others:

• Missing employee name and date of birth in Section 1
• Missing or undated employee or employer signatures
• Failure to properly record List A, B or C document data in Section 2, even when the employer retains supporting documentation
• Failure to record the employee’s first day of employment
• Failure to list name and title of employer or authorized representative
• Use of the Spanish‑language Form I‑9 outside Puerto Rico

2. I-9 System Failures and Remote Verification Errors Are Now High-Risk Areas

ICE’s updated guidance emphasizes that process failures, not just missing or incomplete fields on the I-9 Form, can lead to substantive violations. For example, non-compliance issues resulting from electronic I-9 systems, such as weak audit trails, improper electronic signature practices, or security controls that don’t meet U.S. Department of Homeland Security (DHS) standards, are now treated as serious compliance failures.

Employers who use DHS’s alternative (remote) document review process also face greater risk. For example, failing to indicate on the form that documents were reviewed remotely, or using the alternative procedure without being enrolled in E-Verify at the time, may result in penalties. These issues are no longer considered minor, fixable mistakes and can result in immediate fines.

3. Civil Penalties for Substantive I‑9 Violations Are Assessed Per Form

Substantive Form I-9 violations result in civil penalties that are assessed for each individual form, with penalty amounts adjusted annually for inflation. Under the most recent U.S. Department of Homeland Security adjustment:

• Paperwork violations (including substantive violations or technical errors that are not corrected): $288 to $2,861 per Form I-9.
• Knowingly hiring or continuing to employ unauthorized workers: $716 to $28,619 per worker, depending on prior violations.

Because these penalties are calculated on a per-form basis, even relatively small error rates can lead to significant total liability, particularly for employers with larger workforces.

4. Good‑Faith Compliance Carries Less Weight When Errors Are Substantive

ICE continues to assess penalties based on statutory factors, including business size, efforts to comply in good faith, the seriousness of the violation, prior violations, and whether unauthorized workers are present. However, a good-faith effort does not remove liability for underlying violations, and the updated classifications provide fewer opportunities for mitigation.

5. Employers should proactively audit their Form I-9 files

ICE’s 2026 guidance marks the most consequential shift in Form I‑9 enforcement in decades. Employers should promptly assess existing Forms I‑9, update internal compliance protocols, and consider proactive audits before receiving a Notice of Inspection. Employers should further establish regular, consistent internal audit schedules and engage with trusted legal counsel for privileged I-9 assessments on a regular basis. Even if employers have recently audited their Form I-9 files, it is strongly recommended to reevaluate internal files in light of these new classifications. 

For questions about I-9 compliance, please contact your Quarles immigration attorney or:

• Emily Shircel: 414-277-5217 / emily.shircel@quarles.com
• Rukayya Gitau: 202-780-2631 / rukayya.gitau@quarles.com