ICE Redefines I-9 Substantive Violations And Raises Risk For Employers

For employers with established human resources infrastructure and mature systems, Form I-9 compliance has traditionally been regarded as a controlled and well-understood function. Internal protocols, standardized onboarding procedures, and, in many cases, electronic I-9 systems have provided a framework through which organizations have sought to ensure adherence to federal requirements.

Historically, this approach has aligned with enforcement patterns. While errors in Form I-9 completion have always carried potential consequences, the longstanding distinction between "technical" and "substantive" violations allowed minor, often clerical, deficiencies to be corrected without significant penalty.

Updated guidance from U.S. Immigration and Customs Enforcement (ICE), however, represents a meaningful evolution in this landscape.

In mid-March, ICE issued a Form I-9 inspection fact sheet shifting its enforcement framework. Notably, this change was not accompanied by a broader policy announcement. As a result, there is an increased risk that many employers will be caught unaware of the heightened requirements.

Through the fact sheet, ICE has indicated that it is applying a more expansive interpretation of what constitutes a "substantive violation," thereby broadening the category of errors that may trigger harsher monetary penalties. This includes deficiencies related to identity verification, employment authorization, and the proper and timely completion of Form I-9.

ICE's updated treatment of substantive I-9 violations

Historically, employers have relied on the distinction between technical violations (correctable) and the harsher substantive violations, which could lead to substantial fines and other penalties. The recent ICE guidance indicates that several categories of errors are now more likely to be treated as substantive in practice.

Key changes reflected in the fact sheet include:

Administrative errors

The fact sheet announces that omissions or mistakes in required fields may no longer be treated as correctable, technical violations. Instead, they will be viewed as substantive issues, which may result in monetary penalties.

Examples of errors that may now be treated as substantive violations include:

• A missing date of birth and/or hire date
• Preparer and/or translator errors
• Use of Spanish language I-9 outside of Puerto Rico

Missing signatures, titles, and dates

The fact sheet redefines errors such as the below from technical to substantive.

• Employer or authorized representatives name missing in Section 2
• Blank dates in Section 1 and/or Section 2 of the Form I-9
• Rehire date omitted in Section 3, when applicable

Removal of Form I-9 photocopy exception

Under prior ICE guidance, employers had some flexibility when information was missing from the Form I-9.

For example, if a document title, number and/or expiration date were not noted in Section 2, employers could often rely on a legible photocopy of the document attached to the form. In that case, ICE would typically treat this as a technical error and allow the employer time to correct the omission by copying the missing information onto the form.

Along the same lines, if the employee did not include certain required information in Section 1, but those details appeared elsewhere or in attached documentation, the issue would still be treated as a correctable, technical error.

That flexibility has been eliminated in the latest guidance. Under ICE's updated approach, these types of omissions will likely be treated as substantive violations, even if the correct information exists elsewhere in the file or on a retained document copy.

Remote and electronic verification processes

Previously, businesses were required to physically inspect the Form I-9 identity and employment authorization documents in person, with both a representative of the employer and the employee present.

During the height of the COVID-19 pandemic, however, DHS implemented temporary policies which allowed employers to inspect the documents remotely. Some of those policies were made permanent when a new version of the Form I-9 was released in 2023.

ICE addressed these policies in the new fact sheet, noting that failing to check the alternative procedure box in Section 2 when applicable will result in a substantive violation.

Additionally, substantive violations will occur if an employer uses the remote verification process but is not an active E-Verify participant or registered in a "DHS Non-E-Verify Remote Document Examination Form I-9" program.

Further, the fact sheet clarified that "failure to meet the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer" is also now a substantive violation. This means employers must ensure the electronic software they're using to complete the Form I-9 meets all regulatory requirements.

Why compliance programs may require reassessment with new guidance

Many organizations have developed I-9 compliance programs grounded in historical guidance, prior audit outcomes, and long-standing operational practices. These programs often reflect a sustained, good-faith effort to comply with applicable legal requirements.

However, where enforcement agencies adopt a more expansive interpretation of substantive violations, even well-constructed systems may contain elements that no longer align with current expectations. Variations in how personnel complete Form I-9, minor deviations in timing, or differences in documentation practices across locations may not have resulted in significant exposure previously. Under today's more exacting enforcement lens, however, such inconsistencies may be viewed collectively as indicative of systemic deficiencies.

Additionally, these vulnerabilities may not be readily apparent through routine internal processes and tend to emerge only when documentation is reviewed holistically, as occurs during a government audit. Consequently, employers acting in good faith may remain unaware of potential exposure until they are responding to a Notice of Inspection.

Adapting compliance programs to evolving standards

Employers should proactively engage in addressing the new guidance to ensure the resilience of their compliance programs. A critical first step is developing a deeper understanding of how I-9 compliance is evaluated in the current enforcement landscape.

This requires moving beyond a binary assessment of completion and instead examining consistency, accuracy, and procedural integrity across the organization. With this perspective, employers can undertake a more nuanced evaluation of their systems, identifying patterns of inconsistency, and assessing how their practices would be interpreted under a broader definition of substantive violations.

Organizations with established infrastructure are particularly well-positioned to implement enhanced standardization. By harmonizing practices across departments and locations, employers can reduce variability and strengthen the overall coherence of their compliance programs, an increasingly important factor under heightened enforcement scrutiny.

Further, employers can recalibrate the balance between operational efficiency and regulatory precision. By refining workflows and updating training for experienced personnel, organizations can maintain efficiency while ensuring alignment with evolving enforcement expectations. These efforts ultimately lead to a state of informed preparedness.

Employers who have reassessed their programs and addressed potential vulnerabilities are better equipped to respond to enforcement actions with clarity and confidence, demonstrating a structured and deliberate approach to compliance.

Now, more than ever, employers should work with experienced immigration counsel to evaluate their I-9 processes and assess alignment with ICE's current enforcement approach.

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