Employment Law Update: ICE Significantly Modifies I-9 Penalties
Date: June 25, 2026
Since 1997, ICE has adhered to the “Virtue Memorandum.” This Memorandum divides I-9 errors into two categories: substantive violations and technical/procedural violations. Substantive violations are subject to a fine. For technical and procedural violations, an employer was usually afforded a 10-business-day cure period to correct the error before any fine would be applied. The new fact sheet, however, reclassifies many technical violations or procedural violations as substantive violations. These errors will now be subject to monetary penalties.
These new “substantive" errors include:
- Missing employee date of birth, A-Number/USCIS number, I-94 number, or work authorization expiration date in Section 1
- Missing “other last names used” or physical address in Section 1
- Incorrect/missing Social Security number for E-Verify employers
- Incomplete List A/B/C document information in Section 2 (title, number, expiration)
- Missing the first day of employment in the Certification
- Incomplete preparer/translator data in Supplement A
- Failing to check the “alternative procedure” box for remote verification, or using remote verification without being an active E-Verify participant
- Deficiencies in electronic I-9 systems (audit trails, e-signatures, security documentation under DHS standards)
- Use the Spanish version of the form for employers outside of Puerto Rico
Under prior guidance and practice, keeping copies of the documentation from the employee helped to offset issues with information missing from a required field in Section 2. The new fact sheet removes this protection. A fine is likely to result even if the document provided is maintained with the form.
Likely additional technical violations appear to be a missing SSN, assuming the employer is not using E-Verify, a missing employee name on page 2, a missing employer business address in Section 2, and a missing “other last names used.” It remains to be seen how the change in policy will be applied by the various field offices.
With this change, the risk of greater civil penalties has significantly increased. Current civil penalties for I-9 paperwork violations, under 8 C.F.R. § 274a.10(b)(2), range from $288 to $2,861 per form. This penalty range is adjusted annually for inflation. Because fines are assessed per form, the amount of a penalty will rapidly increase — a company with 100 I-9s containing errors that were previously treated as merely technical could now face penalties in the range of $28,000 to $286,100, excluding any possible knowing-hire or continuing-to-employ violations, which carry much higher penalties. ICE uses a metric to score violations, which includes potential multipliers, as well as mitigation factors that an employer may assert.
Although there remain questions about the extent to which the new policy will be enforced administratively, the change is a red flag for employers with respect to their I-9 compliance programs. Employers are strongly encouraged to review their own I-9 compliance programs and to audit their compliance to identify potential issues now, before they are visited by someone with ICE or Homeland Security Investigations bearing a Notice of Inspection.
Employers should also review their remote-verification processes (E-Verify users only) and ensure that electronic storage systems, if used, meet regulatory standards. Please reach out to Whiteford’s Employment Law team with any questions on this important issue.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.