With immigration enforcement in the news daily, employers are bringing increased focus to their Form I-9 compliance programs. Recent changes to long-standing policy guidance for I-9 audits will make errors even more costly. Many mistakes that previously were not fined if corrected in 10 days – such as failing to check a box or record the number on a document that is retained in the file – are now “substantive” violations that will be counted when assessing the fine level, likely resulting in significantly higher fines for those employers without robust compliance. I-9 fines range from $288 to $2,861 per form, depending in large part on the percentage of errors found during an audit.
Employment eligibility verification through use of the Form I-9 has served as the cornerstone of worksite immigration enforcement since the enactment of the Immigration Reform and Control Act of 1986 (IRCA). The statutory framework established under INA § 274A(b) imposes affirmative obligations on employers to verify the identity and employment authorization of all individuals hired in the United States. Over the years, government agencies have issued guidance to help employers understand their compliance obligations and the consequences of failing to comply.
The Virtue Memorandum, issued in March 1997 by the acting executive commissioner of programs of the Immigration and Naturalization Service (also known as “Interim Guidelines: Section 274(b)(6) of the Immigration & Nationality Act added by Section 411 of the Illegal Immigration Reform & Immigrant Responsibility Act of 1996”), has long been recognized by ICE, the Office of the Chief Administrative Hearing Officer (OCAHO) and immigration attorneys as embodying agency policy on the subject of employment verification. Subsequent agency guidance issued on November 25, 2008, and July 13, 2009, reinforced this interpretation and justified reliance thereon.
On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) released a revised fact sheet on Form I-9 inspections that significantly changes this landscape. Notably, the new guidance eliminates much of the flexibility employers previously had under the Virtue Memorandum, which allowed room for good-faith efforts to correct common mistakes and avoid penalties for substantive errors. ICE has now reclassified numerous errors as “substantive” violations, meaning they count toward penalty calculations even if corrected. The revised fact sheet reflects a more robust enforcement framework, reclassifying numerous substantive errors previously classified as technical errors. It signals an evolution in the agency’s approach to administrative inspections and underscores the increasing complexity of immigration compliance obligations.
The new fact sheet identifies 28 types of substantive Form I-9 violations. However, it does not clearly distinguish between newly reclassified substantive violations and those set forth in the legacy guidance (the Virtue Memorandum and the 11.25.2008 and 7.13.2009 guidance). The following chart highlights the most significant changes employers should be aware of:
| Form Violations | ||
| Category | Prior Classification | Fact Sheet (2026) |
| Completion of Spanish-language Form I-9 outside Puerto Rico | Technical | Substantive violation — Spanish version may only be completed/retained in Puerto Rico |
| Failure to meet electronic Form I-9 standards (completion, retention, security, signatures) | Technical | Substantive |
| Section 1 Substantive Violations | ||
| Violation | Prior Classification | Fact Sheet (2026) |
| Employee date of birth not provided | Technical | Substantive violation |
| No A number for Lawful Permanent Resident (where not in Sections 2/3) | Technical | Substantive violation |
| Employee failed to date Section 1 at time of hire (pre-9/30/96) | Technical | Substantive violation |
| Missing Expiration Date in Box 4 | Technical | Substantive violation |
| Section 2 Substantive Violations | ||
| Violation | Prior Classification | Fact Sheet (2026) |
| Failure to mark alternative procedure box / failure to be active E-Verify participant | Technical | Substantive violation |
| Failure to print complete name and title of employer/authorized representative | Technical | Substantive violation |
| Failure to provide date of hire in Section 2 | Technical | Substantive violation |
| Incomplete List A, B or C information | Technical | Substantive violation |
| Failure to ensure preparer/translator provides complete name, address, signature, and date | Technical | Substantive violation |
What This Means for Employers
The revised USCIS fact sheet represents a shift in priorities, signaling a harsher enforcement climate and carrying significant implications for immigration practitioners and employers. Here’s what this means in practice:
- Document retention no longer saves you: Previously, if an employer retained copies of List A, B or C documents with Form I-9, ICE would often allow corrections to missing information without assessing a fine. That safety net is now gone.
- Remote verification requires careful consideration: Employers using the “alternative” remote verification procedure will now be fined if they fail to check the alternative procedure box on the form or if they are not enrolled in E-Verify.
- Past “technical” errors are now costly: Any error that was previously classified as technical but is now considered substantive will result in costly fines if not corrected prior to receiving a Notice of Inspection.
Recommended Action Steps
We recommend employers take immediate steps to strengthen their Form I-9 compliance programs as follows:
- Immediate internal audit: Conduct internal audits and corrections of existing I-9s, with a focus on precision.
- Review hiring process: Review hiring and onboarding process to ensure company-wide compliance.
- Train I-9 administrators: Authorized company representatives responsible for I-9 completion should receive updated training on the timing and completeness requirements for Sections 1 and 2 and Supplement B, with focus on fields now reclassified as substantive.
- Optimize I-9 process: Automate completion and retention processes, including the use of electronic I-9 systems and remote document inspection, and evaluate the same in consultation with competent business immigration counsel.
- Take extra precautions in a company reorganization: Evaluate all I-9’s in the context of any organizational adjustment, including a merger or acquisition transaction.
Form I-9 compliance is not just an immigration issue and does not only affect employers who hire foreign nationals – the Form I-9 is required for every single new hire within the United States, regardless of whether an employer ever sponsors a visa. The revised fact sheet serves as both a compliance resource and a cautionary document for employers and immigration practitioners, as it is not only instructive but underscores the significant consequences of non-compliance and the importance of robust internal compliance programs.
Robust Form I-9 compliance is no longer optional, it’s essential.
