On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) released a revised version of its longstanding fact sheet, "Form I-9 Inspection Under Immigration and Nationality Act § 274A." The updated fact sheet expands the universe of errors that ICE now considers substantive Form I-9 violations — many of which employers and practitioners have treated as correctable technical mistakes for nearly three decades. The practical effect is a significant increase in potential fine exposure for employers of all sizes, and the changes call for prompt internal review and remediation.

Background

Since the passage of the Immigration Reform and Control Act of 1986 (IRCA), every U.S. employer has been required to verify the identity and employment authorization of individuals hired after November 6, 1986, by completing Form I-9. ICE enforces this obligation through administrative inspections that begin with a Notice of Inspection (NOI), compelling production of I-9 forms and supporting employment records.

For almost 30 years, the distinction between "substantive" and "technical" I-9 errors has been governed by what is commonly known as the Virtue Memorandum. A substantive error on Form I-9 is a violation that goes to the core of the employment eligibility verification process and affects whether the employer properly confirmed identity and work authorization. Historically, examples included failing to complete required sections, missing signatures, or not reviewing required documents. These are considered serious because they undermine compliance and may result in penalties even if later corrected. A technical or procedural error is a minor clerical mistake that does not affect the underlying verification, such as typographical errors, incorrect formatting, or small omissions that do not impact the validity of the form. These errors can generally be corrected after notice and do not result in penalties as long as timely fixed. Although the Virtue Memo was never codified in regulation, it has functioned as binding agency policy, followed consistently by both ICE and the Office of the Chief Administrative Hearing Officer. The revised fact sheet now departs from the Virtue Memo's framework in important respects, yet ICE did not clearly delineate which violations are newly reclassified, adding a layer of confusion for employers attempting to assess their compliance posture.

Newly Designated Substantive Violations

The updated fact sheet identifies 28 categories of substantive violations. Based on a comparison with the Virtue Memo, the following errors — previously treated as technical or otherwise not subject to fines — are now classified as substantive violations:

• Failure to ensure an employee provides a date of birth in Section 1.
• Failure to ensure an employee provides a USCIS / Alien Registration Number in Section 1, if applicable.
• Failure to record a date in Section 1 next to the employee's signature.
• No expiration date listed in Section 1, Box 4, regardless of whether the expiration date appears in Section 2, List A, or on the Employment Authorization Document (EAD) itself.
• Use of the Spanish-language Form I-9 outside of Puerto Rico.
• Missing name and title of the employer representative.
• Incomplete or incorrect recording of List A, B, or C data in Section 2 — including document name, document number, issuing authority, or expiration date — regardless of whether a copy of the underlying document (such as a green card or driver's license) was retained.
• Failure to provide the first day of employment in the Certification portion of Section 2.
• Failure to ensure that the preparer and/or translator's complete name, address, signature, and date are provided on Supplement A at the time of completion.
• When using the remote verification procedure, failure of the employer representative to check the alternative procedure box in Section 2 or Supplement B indicating that remote inspection was used, and/or failure to maintain active E-Verify participation when using the alternative procedure.
• Failures in an electronic I-9 system's audit trails, electronic signature protocols, or security documentation that fall short of specific DHS standards.

Newly Specified Technical Errors

The revised fact sheet also enumerates several technical errors. While many of these were already widely regarded as technical in nature, they were not expressly identified in the Virtue Memo:

• Failing to record the employee’s Social Security Number in Section 1 (for E-Verify enrolled employers)
• Failing to record the employee’s complete name at the top of page 2 (if applicable), Supplement A, or Supplement B
• Failing to ensure the employee provides other last names used, if any
• Failing to record an employee’s new name in Supplement B during reverification
• Failing to use the version of Form I-9 current at the time of initial completion
• Failing to ensure the employee provides an address in Section 1
• Failing to provide the business address in Section 2

What This Means for Employers

The financial implications are significant. For more than 25 years, immigration compliance professionals have advised employers that technical errors do not require remediation in advance of an ICE audit because ICE affords employers an opportunity to correct such errors during the inspection process. That guidance no longer holds for the newly reclassified violations. Errors that previously could be corrected during an audit must now be remediated beforehand — or they will be treated as fineable offenses. For large employers maintaining hundreds or thousands of I-9 forms, the cumulative exposure can be substantial, particularly as annual penalty adjustments continue to be increased for inflation adjustments.

Recommended Action Items

In light of these developments, employers should take the following steps promptly:

Conduct or update an internal I-9 audit. Employers should engage immigration compliance counsel to perform a comprehensive I-9 review. Even organizations that have undergone an audit in recent years should revisit prior results to determine whether errors that were previously classified as technical — and therefore left uncorrected — now fall within the expanded list of substantive violations requiring remediation.

Verify electronic I-9 system compliance. Employers that use electronic I-9 platforms should confirm that their systems satisfy all federal regulatory requirements, including audit trail integrity, proper indexing, and electronic signature standards. Deficiencies in these areas are now expressly treated as substantive violations.

Evaluate use of alternative verification procedures and E-Verify enrollment. Employers utilizing DHS-authorized remote verification should ensure that their representatives are properly documenting the use of the alternative procedure and that the organization maintains active E-Verify participation as required.

Do not rely on document copies to cure missing I-9 data. ICE no longer treats incomplete Section 2 data as a technical error merely because the employer retained a copy of the underlying document. Employers should ensure all required fields are fully and accurately completed at the time of form execution.

Retrain authorized representatives. All individuals responsible for completing or reviewing I-9 forms should receive updated training that emphasizes completeness in Sections 1 and 2 and in Supplement B, with particular attention to the newly designated substantive requirements.

If you have questions about these developments or would like assistance evaluating your organization's I-9 compliance practices, please reach out to a member of our Employment practice group.

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