The Gift that Keeps on Giving…

One of the most difficult areas of employment law currently is the everchanging area of immigration and work authorization.  Over the last several months, employers have struggled to comply with changes in the immigration laws that impact the status of individuals from various nations and regions of the world.  These changes in the law have affected the ability of immigrants who had previously received authorization to work in the United States to retain that authorization based on the change in status.  Just as employers have been working on figuring out how to navigate that shifting landscape, new guidance has been issued by Immigration and Customs Enforcement (“ICE”) regarding the completion of Form I-9. 

The Immigration Reform and Control Act of 1986 introduced the requirement for all employers to complete I-9 forms for each employee.  The purpose of the form was to demonstrate that an employer had properly verified an employee’s identity and authorization to work in the United States.  There was a good faith exception built into the statute that was designed to assist employers in carrying out this responsibility.  Under that exception, an employer would not be found to be in violation of the law when only “technical or procedural errors” occurred.  Under this provision, employers could avoid civil penalties if they corrected any violations found within 10 business days of receiving notice of the errors from the government.  Substantive violations, which are directly related to the purpose and goal of the law, were not eligible for the 10-day correction period. 

To assist employers in understanding the effect of this good faith exception, the Immigration and Naturalization issued a “Virtue Memorandum” in March 1997.  The guidance was titled the “Virtue Memorandum” based not on the virtue of the employers seeking to correct their errors, but on the name of the agency official who issued the memo.  The Virtue Memorandum distinguished between errors that were technical in nature (and, therefore, subject to the good faith correction period) and those which were substantive in nature subject to immediate civil penalties.  On March 16, 2026, with little notice and no comment period, ICE issued new rules regarding substantive and technical violations of the Form I-9.  This new guidance changed the agency’s definition of substantive violations of the Form I-9 requirements and correctable technical errors. 

Under the new guidance, the following are now treated as substantive Form I-9 violations subject to civil penalties:

  • Section 1 violations
    • A failure to ensure that the employee provides a date of birth
    • A failure to ensure that the employee provides their USCIS number
    • Failure to record a date next to the employee’s signature
    • Failure to list an expiration date in Section 1, Box 4, regardless of whether that date is provided somewhere else on the form
  • Use of Spanish on the form outside of Puerto Rico
  • Missing name and title of the employer representative completing the form
  • List A, B. or C data not fully recorded or incorrectly reported in Section 2, even where a copy of the underlying document was retained by the employer.  Problematic missing information includes the issuing authority or expiration date on the document, the name of the document, or the number assigned to the document. 
  • Failure to provide the first day of employment in the Certification
  • Failure to ensure that the prepare and/or translator’s complete name, address, signature and date are provided on the form.
  • For documents that are verified remotely, a failure to check the alternate procedure box in Section 2 or Supplement B indicating that remote inspection was used and/or is not an active E-Verify participant when using the alternate procedure
  • Failures of electronic I-9 system’s audit trails, electronic signature protocols, or security documentation to meet specific DHS standards.

The new guidance also identifies new technical errors – some of which were already viewed as technical errors but were not discussed in the Virtue Memo.  These technical errors include:

  • For employers enrolled in E-Verify, failing to ensure that the employee’s social security number is listed and correct in Section 1
  • Failing to record the employee’s complete name at the top of page 2, if applicable, at the top of Supplement A or at the top of Supplement B
  • Failing to ensure that employee provides any other last names that they have used
  • Failing to record an employee’s new name, if applicable, in the appropriate section of Supplement B during reverification
  • Failing to use the version of the I-9 form that was current at the time that the form was initially completed
  • Failing to ensure that an employee provides an address in Section 1
  • Failing to provide a business address in Section 2

In addition to their increased activity with respect to deportations and inspections of worksites, ICE has also increased its audit activity over the years, particularly in industries that tend to have large immigrant workforces.  This change in the definition of substantive violations will result in much higher civil penalties and fines for employers that have been found to committed these errors.

Employers, to defend against the imposition of such penalties if they are audited by ICE, should conduct their own internal audit to examine their records for any errors that would fall within the substantive violation category based on the new guidance. In the past, employers may not have corrected those errors, as it was believed that the employer would be able to correct them without incurring penalties under the good faith exception set forth in the Virtue Memo. 

In addition to self-audits, employers should also make sure that any electronic I-9 system that it uses is in full compliance with DHS requirements and are used properly, with employer representatives following all instructions and providing all required information.  Employers must also ensure that the I-9 form is fully completed when the paper document is used and that employer representatives do not simply retain copies of the documents in lieu of completing the I-9 form; the fact that an employer has retained copies of the documents no longer insulates the employer form penalties for failing to complete the I-9 for in its entirety.  Finally, employers should retrain staff members who are responsible for completing the work authorization process – this training should focus on the need to be thorough and careful when completing the I-9 process – whether on paper or electronically.  Fines for violations range from $300 to $3,000 and, with audit activity by the agency increasing, mistakes can be costly.  myHRcounsel can assist employers in ensuring that they are meeting their obligations under the law and in being proactive to avoid expensive errors.