On March 16, U.S. Immigration and Customs Enforcement (ICE) issued an updated fact sheet, Form I-9 Inspection Under Immigration and Nationality Act § 274A, revising how certain Form I-9 errors are classified during employer audits. The update retains the long-standing distinction between “technical or procedural failures” and “substantive violations,” but narrows the types of errors eligible for a correction period.
Under the Immigration and Nationality Act (INA), employers must verify the identity and employment eligibility of all newly hired employees using Form I-9. During an ICE inspection, employers generally have three business days to produce Forms I-9. If errors are identified, how those errors are classified determines whether the employer has an opportunity to correct them.
For nearly three decades, employers have relied on agency guidance — most notably a 1997 Immigration and Naturalization Service memorandum (commonly referred to as the “Virtue Memorandum”), along with subsequent ICE guidance issued in 2008 and 2009 — to distinguish between correctable technical errors and substantive violations. The fact sheet reflects a shift in how that distinction is applied in practice.
Technical vs. Substantive Violations
The fact sheet provides that technical or procedural failures may be corrected within at least 10 business days after notice from ICE, while substantive violations may result in monetary penalties and are not eligible for a correction period. The fact sheet also provides that uncorrected technical or procedural failures become substantive violations after the correction period.
Examples of Errors Now Classified as Substantive Rather Than Technical
The fact sheet does not identify which violations have changed categories. However, comparing the current list of substantive violations with prior agency guidance indicates that several errors commonly treated as technical or procedural failures are now included in the substantive category.
| Form Section | Error | Prior Treatment (1997/2008 ICE Guidance) | Current Classification (2026 Fact Sheet) |
| Section 1 | Failure to ensure that the employee dates Section 1 of the Form I-9 | Technical/procedural | Substantive |
| Section 1 | Failure to ensure that the employee completes his or her printed or typed legal name and date of birth | Technical/procedural | Substantive |
| Section 2 | Failure to provide the date of hire in the attestation portion of Section 2 | Technical/procedural | Substantive |
| Section 2 | Failure to date the certification portion of Section 2 | Technical/procedural | Substantive |
| Section 2 | Failure to print the complete name and title of the employer or authorized representative | Technical/procedural | Substantive |
| Section 2 | Failure to record the document title, issuing authority, document number(s) and/or expiration date(s) of acceptable documents | Technical/procedural (often correctable) | Substantive |
| Supplement A | Failure to ensure that the preparer and/or translator’s complete name, address, signature and date are provided | Technical/procedural | Substantive |
| Supplement B | Failure to provide the date of rehire in Supplement B | Technical/procedural | Substantive |
Each of these items appears within the fact sheet’s list of substantive violations and is not eligible for the statutory correction period if identified during an inspection.
What This Means for Employers
The fact sheet narrows the category of errors that qualify as technical or procedural failures and therefore remain eligible for correction during an inspection. Errors involving required fields — particularly those related to dates, document information and employer certification — are now more likely to be treated as substantive violations.
As a result, employers may have fewer opportunities to correct common form completion errors after receiving a Notice of Inspection. Instead, compliance depends more heavily on accurate and complete initial completion of the Form I-9.
The fact sheet provides that technical or procedural failures may be corrected within at least 10 business days of notice, but that uncorrected technical failures become substantive violations. With a narrower set of errors falling into the technical category, the scope of this correction period is correspondingly limited.
The fact sheet also describes potential outcomes of an inspection, including notices identifying technical failures, warning notices or notices of intent to fine where substantive violations are found. Civil penalties may be assessed on a per-form basis and are determined based on statutory factors, including employer size, good faith and prior compliance history.
Institutions may wish to review their Form I-9 completion processes in light of the fact sheet. Given the changes in how certain errors are classified, institutions may also consider consulting with immigration counsel when evaluating compliance practices or conducting internal audits.
CUPA-HR will monitor for additional updates related to Form I-9 compliance.