ICE Expands Form I-9 Liability: What Employers Need to Know

U.S. Immigration & Customs Enforcement (ICE) recently issued updated Form I-9 inspection guidance that fundamentally shifts the risk landscape for U.S. employers. By reclassifying dozens of “technical” mistakes as substantive violations, ICE has effectively eliminated the ability to fix common I-9 errors after an audit begins.

Background

Employers are required to verify the identity and employment eligibility of all individuals hired in the U.S. by completing Form I-9, Employment Eligibility Verification. Employers are required to maintain the original paper form(s) or an electronic version of Form I-9 for all current employees and must also retain copies of forms for former employees for at least three years from the first day of employment or one year from the date employment ends, whichever is later.
ICE holds authority to audit the Form I-9 records of employers at any time. Typically, the agency will issue a Notice of Inspection (NOI) and, once served, employers have three business days to produce I-9 records and supporting documentation.

Following an audit, employers are granted a 10-day “cure period” to fix minor clerical errors (technical or procedural failures) discovered during an ICE audit. Under the new March 2026 guidelines, many of these errors are now deemed substantive and cannot be corrected once a Notice of Inspection (NOI) is served. Fines, which can range from $288–$2,861 per form, may be issued by ICE following the audit inspection.

Critical Reclassifications

The following are now considered substantive violations:

• Missing Core Data: Employee birthdates, hire dates, or signatures in Section 1.
• Omissions in Section 2: Failing to record document titles, numbers, or expiration dates—even if a clear copy of the document is attached to the form.
• Employer Attestation: Missing employer name, title, or business address.
• Remote Verification Missteps: Failure to check the “alternative procedure” box when using remote verification or using remote review without being an active E-Verify participant.
• Supplement B Failures: Failing to provide a rehire date or missing employer signatures on reverifications.
• Spanish Version Usage: Using the Spanish-language Form I-9 for employees outside of Puerto Rico.

What This Means for Employers

• Employers are now strictly liable for errors in the employee section of Form I-9 and having a document with the correct information attached will not cure an error on the form.
• Companies will be subject to greater financial risk due to the increase in fines for what were previously considered minor errors
• Employers may see an increase in I-9 audits and fines for substantive violations and uncorrected technical errors

Proactive Steps for Employers

• Internal Audit: Conduct a privileged internal audit to identify and remediate errors. This not only fixes the forms but also triggers the five-year statute of limitations on those errors.
• Review and Standardize Protocols: Ensure consistent standards when addressing any Form I-9 deficiencies revealed by the audit.
• Verify E-Verify & Remote Workflows: If your company uses remote document examination, ensure you are in full compliance with E-Verify requirements and that the “Alternative Procedure” box is consistently checked.
• Retrain Onboarding Teams: “Good faith” is no longer a shield against these specific omissions. Personnel must be trained on the updated distinction between technical and substantive errors.
• Standardize Corrections: If errors are found, they must be corrected according to USCIS “strike-through” protocols (initialed and dated) to be valid.
• Form Version Control: Make sure that teams are using the correct version of the Form I-9.

Gibney will continue to monitor ICE procedures and provide updates related to Form I-9 compliance. For additional information please contact your designated Gibney representative or email info@gibney.com.

Amy McCoy