ICE Reclassifies Form I-9: What Employers Need to Know

Updated enforcement guidance increases risk of immediate penalties for common Form I-9 errors, limiting opportunities for correction

U.S. Immigrations and Customs Enforcement (ICE) updated the Form I-9 guidance on March 16, 2026, reclassifying many common and correctable paperwork errors as immediately fineable and substantive violations. This change increases the likelihood of immediate penalties and removes the ability to correct certain errors during an audit.

What changed in ICE’s guidance

The update affects errors in Section 1 “employee attestations”, Section 2 “document certifications, preparer and translator certifications”, and Supplement B “reverification and rehire entries”.

Previously, issues in these sections were often considered technical and could be corrected within ten business days following a Homeland Security Investigations (HSI) audit. ICE now requires employers to produce Form I-9 documentation within three business days of receiving a Notice of Inspection (NOI). Civil penalties for violations will continue to be adjusted annually for inflation.

This distinction is significant. Substantive violations are now treated as more serious compliance failures, meaning employers may face fines for errors that were previously fixable.

While this presents a clear compliance risk for construction companies, the impact extends across industries. Employers in hospitality, temporary labor, manufacturing, retail, and other labor-intensive industries sectors should be particularly aware, especially those with high employee turnover or a decentralized hiring process.

What You Need to Do Right Now

The action items here are straightforward, but they need to happen before an NOI arrives – not after.

1. Pull your last audit report.
2. Conduct a new audit if it’s been more than a year.
3. Stop relying on document copies to cure incomplete forms.
4. Audit your electronic I-9 system.
5. Verify your remote verification compliance.

If you have questions or would like additional compliance guidance, contact your employment law advisor.