Recently, Immigration and Customs Enforcement (ICE) made unannounced changes to their Form I-9 Inspection guidance. Employers are required to verify the identity and employment authorization for all employees through the completion of the Form I-9 Employment Eligibility Verification. Pursuant to the Immigration and Nationality Act and as outlined in 8 U.S. Code §1324a, employers can be subject to inspection of I-9 materials to verify compliance.
What is an I-9 Inspection?
In order to conduct compliance investigations, ICE is authorized to issue a Notice of Inspection to an employer requesting that they produce I-9s for inspection by Homeland Security Investigations (HSI). I-9s must be maintained for all current employees and for former employees for three years from their first date of employment, or one year from their termination, whichever is longer. The Notice may also request that additional documents be made available to HSI, including payroll and employee lists.
If any issues are identified by HSI during their investigation, there are several findings they can make and notices they can issue:
- Notice of Suspected Documents – the documentation presented by an employee does not relate to that employee or is otherwise not valid for employment;
- Notice of Discrepancies – the documentation is insufficient to determine employment eligibility; or
- Notice of Technical or Procedural Failures – the I-9s have missing or incomplete sections or corrections were improperly made, and employers are provided ten business days to correct those issues.
After the employer has had the opportunity to address any issues identified in one of these types of notices, HSI will issue written findings based on their investigation through a Compliance Letter or a Warning Notice. The Warning Notice can also be accompanied by a Notice of Intent to Fine (NIF) for substantive violations, which do not have a grace period to allow the employer to correct the issue and carry monetary penalties. If an employer receives a NIF, they can request a hearing before an Administrative Law Judge within thirty days of receipt of the NIF and may enter negotiations with ICE to seek to mitigate their penalties. If no hearing is requested, ICE will issue a Final Order from which there is no ability to appeal.
What was updated in the guidance?
In March 2026, ICE made changes to the technical guidance on I-9 inspections. These changes were not accompanied by a large press release, and it is important that employers understand their ramifications.
Certain errors identified in audits as “technical or procedural” are now being treated as “substantive”. Historically, issues with missing or incomplete fields on the I-9 were classified as “technical or procedural” and employers were afforded the ten-day window for correction. The updated guidance specifically states that the following errors, including missing or incomplete information, are now “substantive”:
- Dates of birth;
- Preparer/translator information;
- Date of hire/re-hire;
- Employer representative’s title; and
- Details regarding documentation provided in support of the I-9, regardless of whether the document remains in the I-9 file.
This means employers will not be automatically afforded a window of time to remedy these errors, and they can incur immediate liability, as well as monetary penalties. These “substantive” violations can be very serious as they have the potential to affect a large number of I-9s within an employer’s organization.
What does this mean for employers?
It is easy for the I-9 — as a routine piece of onboarding paperwork — to be rushed through. It is important that employers understand the gravity of the form and their obligations in regard to completing it. Especially within the online E-Verify system, employers are cautioned to ensure that all fields are complete, and all information that is entered is accurate. With this new guidance, conducting internal audits of I-9 records and bolstering the practices utilized by staff in completion and maintenance of I-9 records is critical. If employers have questions regarding the completion, recordkeeping, training, or auditing of their I-9 files, they should seek advice from employment counsel. Also, if you are interested in staying up to date on issues related to employment eligibility verification, be sure to subscribe to our Immigration @ Work blog.