Until this spring, an employer who left a date off Section 2 of a Form I-9 could expect a short window to correct it if ICE ever came knocking. That window has closed for many of the most common paperwork errors. On March 16, 2026, U.S. Immigration and Customs Enforcement updated its Form I-9 Inspection fact sheet and moved more than ten error types out of the “technical” column and into the “substantive” column. There was no Federal Register notice and no press release, which is why many employers still have not heard about it.
Why the Distinction Matters
Form I-9 paperwork errors fall into two groups. Technical or procedural errors can be corrected after a Notice of Inspection, and federal law gives the employer ten business days to do so before any penalty applies. Substantive errors carry no correction period and are fined on the spot. For 2026, those fines run from $288 to $2,861 per form, and each deficiency on a form counts separately.
For nearly thirty years, the line between the two groups came from a 1997 INS memorandum known as the Virtue Memo. The March 2026 fact sheet replaces that framework without saying so directly. It simply lists the violations ICE now treats as substantive, and the list is longer than it used to be.
Which Errors Changed Categories
Based on a comparison of the new fact sheet against the Virtue Memo and later ICE guidance, the following mistakes are now substantive: a missing employee date of birth or a missing date next to the employee’s signature in Section 1; an omitted A-Number, USCIS number, or I-94 number where the employee is authorized to work until a specific date; incomplete preparer or translator information in Supplement A; a missing first day of employment, a missing date on the employer certification, or a missing title for the person who signed Section 2; and document information in Section 2 that is incomplete or recorded incorrectly.
Two changes deserve extra attention. First, keeping a photocopy of the employee’s document no longer cures a missing document number or expiration date on the form itself. Second, remote document examination is now squarely in scope. Using the alternative procedure without checking the box, or using it while not actively enrolled in E-Verify, is a substantive violation, and so is running an electronic I-9 system that does not meet DHS standards for audit trails, signatures, and record security.
Only a handful of errors keep their ten-day cure window, such as a missing employee name at the top of page two, a missing address in Section 1 or Section 2, or use of an outdated form edition.
What This Means for Your Next Audit
The practical effect is that the inspection itself is no longer the time to fix paperwork. Once a Notice of Inspection arrives, the reclassified errors are already fineable. The only remaining way to address them without penalty exposure is an internal audit completed and corrected before ICE gets involved. Correcting an error also stops it from being treated as an ongoing violation and starts the five-year limitations period running.
One caution: an internal audit that finds problems and then leaves them unaddressed can put an employer in a worse position than never having looked. Any review should be done with a commitment to correct what turns up, and with immigration counsel supervising the process so corrections are made the right way and do not create new discrimination or document-abuse issues.
This change lands on top of the expanded E-Verify Status Change Report that now flags invalidated work permits for TPS, asylum, and adjustment applicants, and a steep increase in Notices of Inspection across New Jersey and the rest of the country. NPZ Law Group’s David H. Nachman, Esq. and Snehal Batra, Esq. will be covering this and the rest of the 2026 enforcement picture at the GSC-SHRM Conference & Expo in Atlantic City on September 29.
Frequently Asked Questions
Did the I-9 form itself change?
No. The form and the underlying requirements are the same. What changed is how ICE classifies mistakes on the form during an inspection, and therefore which mistakes carry an immediate fine.
Does this apply to I-9s completed before March 16, 2026?
ICE applies the fact sheet to forms it reviews now, regardless of when they were completed. Older forms with the reclassified errors carry the same exposure as new ones, which is why an internal review of existing forms matters.
We use a payroll vendor’s electronic I-9 system. Are we covered?
Not automatically. The employer remains responsible for making sure the system meets DHS regulations for electronic completion, retention, audit trails, and signatures. A widely used product is not proof of compliance.
Can we still fix errors after we receive a Notice of Inspection?
Only the errors ICE still treats as technical, and only within the ten-business-day window. The reclassified errors cannot be cured at that stage.
What should we do first?
Pull a sample of I-9s from the last three years, check them against the new substantive list, and if problems show up, schedule a full audit with counsel before the end of the quarter.
If you or your family members have questions about how this or other immigration and nationality matters may affect you, please do not hesitate to contact the immigration and nationality lawyers at NPZ Law Group. You can reach us by emailing info@visaserve.com or by visiting our website at www.visaserve.com for more information.