I-9 Compliance Update: Technical/Procedural vs. Substantive

By Kerr, Russell and Weber, PLC

April 27, 2026

On March 16, 2026, without public announcement, U.S. Immigration and Customs Enforcement (ICE) published a revised Form I-9 Inspection Fact Sheet that reclassifies numerous I-9 errors previously treated as technical/procedural as substantive violations, subject to monetary penalties.

Historically, I-9 compliance violations have been separated into two categories: technical/procedural and substantive. Technical/procedural errors are those considered minor (e.g. data entry mistakes), with employers having the opportunity to correct in the event of an I-9 audit. Substantive violations are more serious and give rise to immediate penalties. The new guidance shifts numerous technical/procedural violations to substantive, and classifies errors that had not previously been considered in either category as technical violations.

Examples of technical/procedural violations that are now substantive include I-9 forms that are missing:

• Employee date of birth
• A# for a Lawful Permanent Resident employee
• Employee/employer signature date
• Title of the employer signatory
• Date of hire/rehire

Examples of errors that had not been previously classified in either category, but are now technical violations include:

• Failure to use the current version of the I-9 Form
• Failure to ensure the employee provides any other last names used
• Failure to record the employee’s complete name in any required field

Notably, the Fact Sheet does away with the long-standing ICE position that the omission of document details on the I-9 (e.g. document number, expiration date) is considered a technical/procedural if a copy of the document is attached to the form. Regardless of retention, these violations are now substantive.

Current fines for substantive violations range from $288 to $2861 per form. With these hefty fines, the reclassification of violations, and increased attention on enforcement, it is critical that employers implement and execute proper I-9 compliance practices. Specifically, employers should:

• Ensure that employees who complete/review I-9s receive proper compliance training.
• Carefully review all I-9s, more than once, at the time of completion.
• Evaluate electronic I-9 systems to ensure compliance with I-9 requirements.
• Conduct an internal audit of I-9s. While substantive violations cannot escape fines by correction, remediation can be a favorable consideration in the event of an ICE audit. Note that conducting an audit and failing to remediate can actually expose an employer to higher fines, as it is evidence of constructive knowledge.