The U.S. Immigration and Customs Enforcement (“ICE”) recently updated its Form I-9 inspection fact sheet to reclassify a long list of common paperwork errors as “substantive” violations. ICE made the change by updating its inspection guidance rather than through formal rulemaking.

The classification list controls whether an employer can fix the error, with or without penalty. A technical or procedural failure entitles the employer to written notice and at least ten business days to correct the form before any penalty attaches. A substantive violation carries an immediate fine and no opportunity to cure. Civil penalties for I-9 paperwork violations range from $288 to $2,861 per form under 8 C.F.R. § 274a.10(b)(2), as adjusted effective January 2, 2025, and are assessed form by form. The new guidance materially narrows the set of errors that ICE will treat as correctable technical violations.

Here is what employers need to know:

• Routine Omissions Are Now Fineable: The reclassified errors include, but are not limited to, a missing employee date of birth or alien registration number, a missing date beside the employee’s signature, a missing work authorization expiration date, a missing name or title for the employer’s authorized representative, a missing first day of employment in the Section 2 certification, and use of the Spanish-language form outside Puerto Rico.
• The Supplements Are Covered: The update reaches beyond Sections 1 and 2. Incomplete preparer or translator information in Supplement A is substantive, as are deficiencies in Supplement B where that supplement applies, meaning rehire and reverification.
• Retained Copies No Longer Cure Section 2 Gaps: An employer that omitted a document title, number, issuing authority, or expiration date could previously transcribe the information from a retained copy during the cure period. Incomplete List A, B, or C data is now substantive whether or not copies were kept.
• Remote Verification and Electronic Systems Are Covered: Failing to check the alternative procedure box in Section 2 or Supplement B, or using remote document examination without active E-Verify participation at the time of the examination, is substantive. So are deficiencies in an electronic I-9 system’s audit trail, electronic signature protocols, or security documentation, including those of a third-party vendor whose violations are charged to the employer.
• Some Errors Remain Correctable: The update did not sweep in everything. A missing Social Security number for an E-Verify participant, a missing employee address in Section 1, and a missing employer business address in Section 2 remain technical failures subject to the ten-day cure.

Timing is what remains within an employer’s control. Corrections made after a Notice of Inspection issues will not reduce liability for substantive violations. Corrections made beforehand reduce continuing exposure and support the good-faith factor that ICE and the Office of the Chief Administrative Hearing Officer must weigh in setting penalties. Once an employer identifies errors, however, leaving them uncorrected can undermine those same good-faith arguments and supply evidence of knowledge of noncompliance.

Under this new guidance, employers should promptly conduct an I-9 audit, correct what can be corrected, and conduct new training for the personnel responsible for completing the forms. Employers that have completed an audit within the past year should not assume that technical violations need not be corrected; errors flagged as technical and previously left alone may now be substantive violations with mandatory fines.

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