ICE Updates Form I-9 Enforcement Guidance

The Details

Background

Under federal law, all employers must ensure that a Form I-9 (I-9) is timely and properly completed for each employee hired after November 6, 1986. The form is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

ICE is responsible for enforcing I-9 rules and may issue penalties for I-9 errors.
The law provides a limited good-faith exception if an employer has committed only “technical or procedural” errors.  This good-faith exception allows an employer to avoid civil penalties if it corrects technical or procedural errors within ten business days of written notice of inspection from the government. Substantive errors are not eligible for this cure period though employers should still consider proactively correcting substantive errors.   While correcting substantive errors does not shield an employer for liability, post-error corrections can be relevant to the size of the penalty. 

ICE publishes a fact sheet that outlines how it will inspect and enforce I-9 rules. The fact sheet has typically followed enforcement guidelines outlined in a 1997 agency memo, often referred to as the Virtue memo (after the last name of the official who drafted it).

Updated Guidance

ICE has updated the inspection and enforcement fact sheet at least twice in 2026, on Jan. 25, 2026, and March 16, 2026. The updated fact sheet includes more errors that will now be considered substantive violations by the agency. It also appears to differ from the Virtue memo in certain respects.

In the updated guidance, ICE lists the following as substantive violations. The areas that appear to differ from the Virtue memo are emphasized.

• Failure to:
• Completion of a Spanish-language version of the I-9 (instead of the English-language version) outside Puerto Rico*.
  
  
• Violation of the standards for the electronic completion, retention, documentation, security, reproduction, electronic signature(s) for the employee, and electronic signature(s) for the employer, recruiter, or referrer for a fee, or representative.
  
  

* Only employers located in Puerto Rico may complete the Spanish-language version of the I-9 instead of the English-language version. However, any employer may use the Spanish-language form and instructions as a translation tool.

Other Examples of Errors that ICE Lists as Substantive Violations

The following are some examples of other errors that ICE lists as substantive violations. The areas that differ from the Virtue memo are emphasized.

·      For Section 1 of the form, failing to ensure that the employee:

o   Completes their printed or typed legal name and date of birth.

o   Checks only one box when attesting to their citizenship or immigration status.

o   Completes the number field next to the phrase “a lawful permanent resident” (if they select this option for their status ), regardless of whether the information is provided in Section 2/Supplement B or whether the employer has retained a legible copy of the documentation.

o   Completes the Alien Registration Number/USCIS Number field or the Form I-94 Admission Number field or, if applicable, the foreign passport number and country of issuance and the employment authorization expiration date field (if the individual selects that they are an alien authorized to work in the United States until a specified date as their status), regardless of whether the information is provided in Section 2/Supplement B or whether the employer has retained a legible copy of the documentation.

o   Signs the attestation portion of Section 1.

o   Dates Section 1.

·      For Section 2 of the form, failing to:

o   Verify the individual's identity and work authorization within three business days following the date of hire by physically examining acceptable documentation.

o   Record the document title, issuing authority and document number of the acceptable documentation that the individual presented to confirm their identity and work authorization, regardless of whether the employer has retained a legible copy of the documentation.

o   Mark the alternative procedure box in Section 2 if the employer used one authorized by the Department of Homeland Security to examine documents remotely.

o   Print the complete name and title of the employer or authorized representative.

o   Provide the date of hire in the attestation portion of Section 2.

o   Sign the certification portion of Section 2.

o   Date the certification portion of Section 2.

·      For Supplement A of the form (Preparer and/or Translator Certification for Section 1), failing to:

o   Ensure that the preparer and/or translator’s complete name, address, signature, and date are provided on the I-9 at the time of completion, when either a preparer and/or translator was used to assist the employee in the completion of the form. 

·      For Supplement B of the form (Reverification and Rehire), failing to:

o   Date Supplement B no later than the date on which an employee’s temporary employment authorization expires and verify the individual’s continued employment eligibility by physically examining acceptable documentation.

o   Provide the date of rehire in Supplement B, or in an alternate applicable section or supplement pertaining to a required reverification or rehire entry.

o   Record the document title, document number(s), and/or expiration date(s) (if any) of acceptable documentation, regardless of whether the employer has retained a legible copy of the documentation.

o   Print the complete name of the employer or authorized representative, sign and date the “Reverification and Rehires” portion of Supplement B, or an alternate applicable section or supplement pertaining to a required reverification or rehire entry, on or before the date the employee’s previously presented temporary employment authorization expires.

o   Mark the alternative procedure box in Supplement B if the employer used one authorized by the Department of Homeland Security to examine documents remotely.

Review the updated guidance for its full list of examples.

Technical Errors

The updated guidance also includes examples of technical violations of I-9 requirements.

Next Steps

Employers should review the updated guidance in full and consult legal counsel on its impact and what, if any, steps they should take in response.