ICE Changed the Rules on I-9 Errors — Here’s What Employers Need to Know

September 22, 2026

For almost 30 years, employers had some breathing room when it came to certain Form I-9 mistakes. Many common errors were considered “technical,” meaning employers generally had an opportunity to correct them before facing a penalty.

In March, U.S. Immigration and Customs Enforcement (ICE) quietly updated its Form I-9 inspection guidance and reclassified more than 10 errors that were previously considered technical, as “substantive” violations. This change matters because technical violations generally come with a 10-business-day opportunity to correct the problem after government notice. Substantive violations do not. Penalties range from $288 to $2,861 per Form I-9.

What Changed?

Since 1997, employers have relied on what is commonly called the “Virtue Memorandum” to distinguish technical I-9 errors from substantive ones. With the new guidance, that longstanding approach no longer works. Errors that may now be treated as substantive include:

• Missing information in Section 1;

• Incomplete document information in Section 2;

• Failure to include first day of employment;

• Missing information on preparer or translator;

• Certain errors involving remote document inspection; and

• Deficiencies involving electronic I-9 systems.

ICE also eliminated a helpful protection for employers that retain copies of employee documents. Previously, a legible copy of a document could sometimes help fix the problem of missing document information on the I-9. Under the new guidance, a copy may no longer work.

What About Old I-9s?

ICE did not change the statute or adopt a new regulation. Instead, it changed its enforcement guidance employers had used under the previous framework for nearly three decades.

There is legal support for employers arguing that they were entitled to rely on the government’s prior guidance. That issue has not yet been decided under ICE’s new 2026 guidance, so employers facing penalties for older I-9s should not automatically assume today’s classifications can simply be applied to yesterday’s forms.

Don’t Wait for an Inspection

As we have previously advised, preemptively reviewing your Forms I-9 and curing any mistakes or errors now will help avoid what is now likely significant potential for increased penalty costs associated with those errors. Employers should consider an internal audit, particularly if they have a large workforce, use electronic I-9 systems or remote verification, or previously conducted an audit that identified errors as merely “technical.”

When conducting an I-9 audit, employers should be careful to ensure corrections are transparent and never backdated. Also, conduct the audit using neutral criteria rather than focusing on any particular factor of employee such as citizenship, national origin, immigration status, or the documents they presented. Getting out in front of those corrections will help significantly when it comes to demonstrating good faith if penalties are later assessed.

Please contact Abby Fitts at 503-276-2190 or afitts@barran.com with any questions or for assistance in determining your I-9 compliance.

Be sure to register for Barran Liebman’s 2026 Annual Employment, Labor, Benefits & high Education Law Seminar at the link HERE.