If you have been paying attention to the news lately, you have likely seen headlines about increased federal worksite enforcement activity. But there is a quieter policy change that deserves just as much attention from California employers: the U.S. Immigration and Customs Enforcement (ICE) has updated its Form I-9 inspection guidance, meaningfully raising the compliance stakes for businesses.

Background

The Immigration Reform and Control Act (IRCA), enacted in 1986, requires all U.S. employers to verify the identity and work authorization of every employee hired after November 6, 1986, using Form I-9. ICE's Homeland Security Investigations (HSI) unit enforces these requirements through audits called Form I-9 inspections, initiated by serving employers with a Notice of Inspection (NOI).

For decades, I-9 paperwork violations fell into two categories: substantive violations, which are serious errors that could indicate the hiring of an unauthorized worker, and technical or procedural violations, which are administrative or clerical mistakes that can be corrected. Critically, when ICE identifies a technical error during an audit, the employer must be given at least 10 business days to fix it before any fine can be issued. Substantive violations, by contrast, can result in immediate monetary penalties.

That two-tier framework has been in place since 1996, and many employers and HR professionals have relied on it when managing their I-9 practices.

Updates

ICE recently updated its Form I-9 inspection fact sheet, and the change is significant. Several errors that were long treated as correctable technical failures are now classified as substantive violations. According to John Fay, director of product strategy at Equifax Workforce Solutions and an I-9 compliance expert, "mistakes that might have been treated as correctable clerical errors could now be subject to immediate monetary penalties following a Form I-9 inspection."

The newly reclassified substantive violations include errors that are, frankly, easy to make in a busy onboarding environment:

• Missing date of birth in Section 1
• Missing date of hire in Section 2
• Incorrect use of the Spanish-language I-9 outside of Puerto Rico
• Preparer and/or translator errors in Supplement A, including failure to record the preparer's complete name, address, signature, and date
• Missing title of the employer or authorized representative
• Failure to date Section 1 or Section 2
• Failure to record the rehire date in Supplement B

Remote Verification Procedures Are Also Affected

The updated guidance also has implications for employers who adopted the alternative remote document examination procedure introduced in 2023. Under the revised framework, failure to check the alternative procedure box in Section 2 or Supplement B to indicate that remote inspection was used, and failure to be an active E-Verify participant at the time the alternative procedure was used, are now substantive violations as well.

This is particularly important for employers who moved to remote or hybrid onboarding workflows and may have assumed that digitizing the process provided an adequate compliance cushion.

Electronic I-9 Systems Are Not a Catch-All

Many organizations have adopted electronic I-9 software to reduce errors and streamline the onboarding process, and that is generally a sound strategy. However, the updated ICE guidance makes clear that software alone is not enough. If an electronic I-9 system's audit trails, electronic signature protocols, or security documentation do not meet specific regulatory standards, those shortfalls can become substantive violations for the employer.

What This Means for Your Business

The practical effect of these changes is that the margin for administrative error during an I-9 audit has narrowed considerably. Errors that previously triggered a 10-business-day correction window may now result in fines from the outset.

Recommendations

• Conduct a proactive I-9 audit. Review your existing I-9 forms, particularly for the newly reclassified errors. Catching and correcting issues before an NOI arrives puts you in a much stronger position.
• Review your remote verification procedures. If your organization used the 2023 alternative procedure, confirm that all required steps were followed and documented.
• Evaluate your electronic I-9 system. Make sure your platform meets the regulatory standards for audit trails, electronic signatures, and security documentation under 8 C.F.R. § 274a.2.
• Invest in I-9 training. HR professionals, managers, and anyone involved in the onboarding process should understand not just how to complete the form, but why accurate dates and complete entries matter. Given these changes, that training is more important than ever.

I-9 compliance is one of those areas where small, correctable oversights can quietly become costly liabilities. If you have questions about your current practices or would like help conducting an internal I-9 audit, I am here to help.

Disclaimer: This post is for informational purposes only and does not constitute legal advice or create an attorney-client relationship.