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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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All U.S. employers are required to complete a Form I-9 for every new hire to verify identity and work authorization. While the requirement itself is straightforward, the compliance framework around it is highly technical — and, until recently, was somewhat forgiving of routine administrative mistakes.

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To understand why recent changes matter, it is helpful to look at how the I-9 audit process traditionally works. When U.S. Immigration and Customs Enforcement (ICE) initiates a worksite inspection, it serves the employer with a Notice of Inspection (NOI). At that point, the employer generally has three business days to produce its Forms I-9 and supporting documentation. After reviewing those forms, ICE typically issues findings identifying any errors.

Historically, if those errors were classified as “technical” violations — such as missing dates, incomplete fields or minor data entry issues — the employer was given an additional ten business days to correct them. If properly corrected within that timeframe, those errors would not result in fines.

For example, consider a mid-sized manufacturing company with 800 employees and several years of hiring activity. During an audit, ICE might identify that a portion of the company’s I-9s are missing employee birth dates, contain incomplete document information in Section 2 or lack a printed name or title for the employer representative. Under the traditional framework, these types of issues would generally be treated as technical violations. The company would be given ten days to fix those errors, and if corrected properly, those forms would not result in financial penalties.

That framework allowed employers to manage risk. Even if their I-9 processes were not perfect, they had an opportunity to remediate common errors before fines were imposed.

Recent developments suggest that this framework may be changing.

ICE has quietly updated its Form I-9 inspection guidance in a way that appears to reclassify many of these previously correctable technical errors as “substantive” violations — meaning they may now be subject to immediate fines without an opportunity to cure. The financial implications are significant. Current civil penalties for I-9 paperwork violations range from approximately $288 to $2,861 per form, depending on the percentage of errors identified. In the example above, if even half of the company’s I-9s were found to contain now-substantive errors, the total exposure could easily exceed $1 million.

Importantly, these are not rare or unusual mistakes. Many employers — particularly those with high-volume hiring or decentralized onboarding — have at least some level of I-9 completion errors across their workforce.

What Appears to Have Changed

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Under ICE’s updated guidance, a number of errors that employers have long treated as technical — and therefore correctable — may now be treated as substantive violations from the outset.

In practical terms, this includes common omissions such as leaving a birth date blank in Section 1, failing to record the employee’s first day of employment, not including the employer representative’s name or title or failing to fully record document information in Section 2, such as a document number, issuing authority or expiration date. Even use of the Spanish-language Form I-9 outside of Puerto Rico is now treated as a substantive issue.

These are the types of mistakes that frequently occur during routine onboarding and, in the past, were often corrected during the audit process without penalty. Under the updated guidance, employers may no longer have that opportunity. The revised guidance also reflects a stricter position on remote verification procedures and on the compliance requirements for electronic I-9 systems, including audit trails and system controls.

Why This Matters for Employers

The shift from technical to substantive classification is significant because it directly affects financial exposure. Errors once viewed as routine administrative oversights could now result in immediate penalties if identified during an inspection, particularly when multiplied across a large workforce.

This issue is not limited to employers that sponsor foreign nationals. Form I-9 compliance applies to every employer in the United States and to every employee hired after Nov. 6, 1986. As a result, potential exposure extends across an employer’s entire workforce, not just recent hires. The updated guidance also comes at a time when I-9 enforcement appears to be becoming more aggressive, with shorter timelines between inspection and enforcement actions. This means employers may have less time to respond once an audit begins.

Tension with Longstanding Guidance

For many years, employers and practitioners have relied on a 1997 policy document known as the <a href="https://law.stanford.edu/index.php?webauth-document=event/265484/media/slspublic/Virtue%20Memo%20with%20appendices.pdf" target="_blank" rel="noreferrer noopener">Virtue Memorandum</a> to distinguish between technical and substantive violations. Although not formally codified in regulations, this guidance has been consistently applied by ICE and administrative courts and has shaped how employers approach I-9 compliance.

The new <a href="https://www.ice.gov/factsheets/i9-inspection" target="_blank" rel="noreferrer noopener">fact sheet</a> does not clearly explain how it interacts with that longstanding framework. It does not identify which violations are newly classified as substantive or whether prior interpretations remain valid. This lack of clarity creates uncertainty for employers who have structured their compliance programs around the prior guidance.

Despite this uncertainty, the prudent approach is to assume that ICE will apply stricter interpretation during inspections.

Common Problem Areas to Revisit Now

Employers should review their I-9 records with particular attention to areas that may have previously been considered low risk. These include completeness of employee information in Section 1, accuracy of document information in Section 2, proper completion of supplements and compliance with any remote verification procedures. Particular attention should be paid to missing or incomplete data fields, inconsistencies in document recording and any reliance on document copies rather than properly completed form fields. Employers should also confirm that any electronic I-9 systems meet federal requirements for audit trails, security and recordkeeping.

What Employers Should Do Now

In light of these developments, employers should take a proactive approach to I-9 compliance. Waiting until a Notice of Inspection is issued may no longer provide an opportunity to correct certain errors without penalty.

Conducting or updating an internal I-9 audit with counsel

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Reviewing prior audit findings to determine whether previously identified technical errors were fully corrected

Evaluating onboarding processes to ensure forms are completed accurately and on time

Retraining HR personnel and authorized representatives responsible for I-9 completion

Reviewing electronic I-9 systems for regulatory compliance

Confirming proper use of E-Verify and any remote inspection procedures

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Training is particularly important. Many I-9 errors arise not from intent but from the compressed timelines and technical nature of the form. Section 1 must be completed no later than the employee’s first day of work and Section 2 must be completed within the required timeframe thereafter.

ICE’s revised I-9 inspection guidance appears to significantly narrow the distinction between technical and substantive violations, increasing the likelihood that routine form errors will result in fines. For employers, this represents a meaningful shift in compliance risk.

Now is the time to review existing I-9 practices, address any gaps and ensure that onboarding procedures are aligned with current enforcement expectations.

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Sarah R. Bileti

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ICE’s New I-9 Guidance Raises the Stakes for Routine Form Errors

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ICE’s New I-9 Guidance Raises the Stakes for Routine Form Errors

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