I-9 Tips and Reminders
I-9 Errors: What Employers Need to Know
For years, employers have had some flexibility when it came to correcting certain Form I-9 mistakes. However, a recent change to U.S. Immigration and Customs Enforcement (ICE) inspection guidance has changed how some I-9 errors may be treated during an inspection.
In March 2026, ICE updated its Form I-9 inspection guidance and reclassified more than 10 errors that had previously been considered “technical” violations as potentially substantive violations. This distinction is important because technical violations have historically provided employers with an opportunity to correct certain mistakes after receiving notice from the government, while substantive violations generally do not receive the same correction period.
For employers, the change is a good reminder that now is a valuable time to review I-9 processes and make sure forms are being completed accurately from the beginning.
What’s Changed?
For nearly 30 years, employers have relied on guidance commonly known as the “Virtue Memorandum” to distinguish between technical and substantive I-9 errors. Under the updated ICE guidance, that longstanding framework is no longer being applied in the same way.
Errors that may now be treated as substantive violations include:
• Missing information in Section 1
• Incomplete document information in Section 2
• Failure to include an employee’s first day of employment
• Missing information about a preparer or translator
• Certain errors involving remote document inspection
• Certain deficiencies involving electronic I-9 systems
This change matters because substantive violations can result in penalties without the same opportunity to correct the error after receiving government notice. According to Barran Liebman LLP, current penalties can range from $288 to $2,861 per Form I-9, depending on the violation and applicable penalty assessment.
What About Copies of Employee Documents?
Another change employers should be aware of involves copies of employee documents.
Previously, retaining a legible copy of an employee’s documents could, in certain circumstances, help address missing document information on the Form I-9. Under the updated guidance, simply having a copy may no longer resolve the underlying I-9 error.
Employers should therefore make sure the required information is properly recorded on the Form I-9 rather than relying on supporting copies to fill in gaps later.
What Does This Mean for Older I-9s?
The updated guidance does not change the underlying statute or create a new regulation. Rather, ICE changed the guidance it uses when conducting Form I-9 inspections. That distinction is particularly important for older Forms I-9.
Employers may have previously reviewed forms under the guidance that was in place at the time and classified certain errors as technical violations. Whether the new classifications can be applied to older forms is an issue that has not yet been fully resolved. Employers dealing with potential penalties involving older I-9s should consider obtaining legal guidance rather than automatically assuming the current classifications apply retroactively.
Should Employers Conduct an I-9 Audit?
With the potential for increased penalties, employers may want to consider reviewing their existing Forms I-9 and their current verification procedures. An internal audit may be particularly useful for employers that:
• Have a large workforce
• Use an electronic I-9 system
• Utilize remote document inspection or verification
• Have previously conducted an audit and identified errors as “technical”
• Have recently changed their onboarding or HR systems
• Have multiple people responsible for completing or reviewing Forms I-9
An audit can help employers identify patterns and address issues before an inspection occurs. It can also provide an opportunity to make sure HR staff understand the current requirements.
Correcting I-9 Errors: What Employers Should Remember
When an error is identified, corrections should be made carefully and transparently.
Employers should not erase information, use correction fluid, conceal the original entry, or backdate a correction. Instead, corrections should clearly show what was changed, with the appropriate initials and date. Depending on the type of error, a new Form I-9 or additional documentation may be appropriate.
Employers should also remember that employees are responsible for completing Section 1, while employers are responsible for completing Section 2 and, when applicable, Section 3. Corrections should be made by the appropriate party.
Keep Audits Consistent and Neutral
If your organization conducts an internal I-9 audit, it is important to apply the same process consistently across your workforce.
Employers should not select Forms I-9 for review based on an employee’s citizenship, national origin, immigration status, or the type of documents they presented. Instead, audits should be conducted using neutral, consistent criteria.
A consistent process can help employers identify errors without creating additional compliance concerns.
Don’t Wait Until There’s an Inspection
The biggest takeaway for employers is simple: don’t wait for an ICE inspection to discover problems with your I-9 process.
Reviewing your current procedures, training the employees responsible for I-9 completion, and identifying errors early can help your organization stay prepared. Employers that discover significant issues or have questions about how to handle particular Forms I-9 should consider consulting qualified legal counsel.
The rules surrounding Form I-9 compliance can be complicated, particularly as enforcement guidance continues to evolve. Staying informed and maintaining a consistent process can help employers be better prepared for changes and potential inspections.
This article is intended for general informational purposes and does not constitute legal advice. I-9 requirements can vary depending on the circumstances, and employers with specific compliance questions, significant errors, or concerns about an ICE inspection should consult qualified legal counsel.
Looking for a Trusted Portland Staffing Agency?
At NW Staffing Resources, we’re not just filling positions—we’re building lasting relationships. If you’re ready to partner with a local staffing agency that puts your hiring needs first, get in touch with our team today. Let’s build your best team together.
