ICE Updates I-9 Offenses, Increasing Risk of Employer Fines
The United States Immigration & Customs Enforcement (ICE) recently overhauled the Form I-9 Inspection Under the Immigration and Nationality Act § 274A Fact Sheet (“2026 Fact Sheet”). In doing so, the federal government significantly departed from many of its deeply-rooted historical practices and created new standards for substantive and technical violations, which collectively expose employers to greater liability for non-compliance.
Under the Immigration Reform and Control Act (IRCA), employers must verify the identity and the work authorization of all employees that they hire through the completion of the Form I-9. ICE conducts audits to determine if employers are complying with IRCA. The agency historically has used memoranda, guidelines, and other publications to guide it during these investigations. In particular, prior to releasing the 2026 Fact Sheet, ICE consulted the Virtue Memorandum from the legacy agency – the United States Immigration and Naturalization Service (INS) – for the past 29 years, for the purposes of discerning between substantive violations and technical violations. The distinction between the two is paramount because employers have the ability to correct technical violations.
According to the 2026 Fact Sheet, the following now constitute substantive violations:
Employees not writing their date of birth in Section 1;
Employees not adding their USCIS numbers to Section 1;
Not writing the date next to employees’ signatures in Section 1;
Not adding the expiration date for documents in Section 1 even though it is in Section 2;
Using the Form I-9 that is in Spanish for employees that work outside of Puerto Rico;
Not including the title and the name of representative that completed the form;
Not including all the data points for the List A or List B and List B Document(s);
Not listing employees’ first day of employment in the Certification Section;
Not including all the details regarding the translator or the preparer that helped;
Failing to check the box to indicate use of the alternative procedure for remote examinations;
Not ensuring proper creation and maintenance of electronic I-9 system’s audit trails, not following e-signature guidelines, and otherwise not complying with the requirements for the alternative procedure.
The 2026 Fact Sheet also created new technical errors, including:
Not listing maiden names or former names
Not documenting name changes when doing a reverification
Using an outdated Form I-9
These changes in categorization significantly decrease the ability for an employer to avoid fines for what have been generally considered routine administrative mistakes. As ICE has publicly increased its administrative audits over the past few years, and fines can range from several hundred to several thousand dollars per violation, employers immediately need to take action, which includes:
Auditing their Form I-9s to ensure compliance;
Updating policies and procedure regarding onboarding;
Reviewing use of electronic or alternative procedures, as applicable; and
Training their staff on the proper completion of the Form I-9.
Partner Giovanni Antonucci Di Cesare (giovanni.antonucci@pierferd.com) and Junior Partner Allison Bustin (allison.bustin@pierferd.com), Employment, Labor, and Benefits Department, are available to counsel on work authorization matters.
This publication and/or any linked publications herein do not constitute legal, accounting, or other professional advice or opinions on specific facts or matters and, accordingly, the author(s) and PierFerd assume no liability whatsoever in connection with its use. Pursuant to applicable rules of professional conduct, this publication may constitute Attorney Advertising. © 2026 Pierson Ferdinand LLP.
