Are You In Compliance? Re-Defined ‘Substantive’ Form I-9 Violations

Posted by: Karen Booher on May 6th, 2026

With the recent changes that U.S. Immigration and Customs Enforcement (ICE) made to policies related to Form I-9 compliance, if audited, your company faces increased penalties for certain errors.

Since 1996, the federal government splits I-9 violations into two categories:

1. Substantive violations that could lead to hiring an unauthorized worker.

2. Technical or procedural violations for administrative or clerical mistakes that could easily be corrected.

In March, ICE reclassified several previously ‘technical or procedural’ violations as ‘substantive’ violations, including the following:

• Missing date of birth.

• Missing date of hire.

• Incorrect use of Spanish-language outside of Puerto Rico.

• Preparer and/or translator errors.

• Missing title of the employer or authorized representative.

• Failure to date Sections 1 or 2.

• Failure to enter rehire date.

• Failing to check the alternative procedure box in Section 2 or Supplement B indicating that remote inspection of documents was used.

For a complete list of ‘Substantive’ and ‘Technical or Procedural’ violations, see ICE’s Form I-9 Inspection Fact Sheet.

What Happens if Your Company is Audited?

The I-9 administrative inspection process is initiated with the service of a Notice of Inspection (NOI) upon an employer. Employers receive at least three business days to produce the Form(s) I-9 requested in the NOI along with any requested supporting documentation.

• If technical or procedural violations are found in an audit/inspection, the employer receives at least 10 business days to make corrections.

• An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures.

Did You Know? How Long Are You Required to Retain Form(s) I-9?

• For current employees, employers are required to maintain for inspection original Form(s) I-9 on paper, or as an on-screen version generated by an electronic system that can produce legible and readable paper copies.

• For former employees, the retention of I-9’s is required for a period of at least three years from the first day of employment, or one year from the date employment ends, whichever is longer.

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Source:

HR Daily from SHRM, 4/13/2026. “ICE Redefines ‘Substantive’ I-9 Violations”, by Roy Maurer, April 10, 2026.