Why Now Is the Time to Audit Your I-9s — Not After You Receive an NOI

On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) issued updated guidance that significantly changes how Form I-9 violations are evaluated. While this may seem like a technical shift, the practical impact on employers is clear:

Errors that were once treated as minor paperwork issues may now result in immediate penalties.

If your organization has not conducted a recent I-9 audit, now is the time to act—before receiving a Notice of Inspection (NOI).

A Quick Refresher: What Is Form I-9?

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to complete Form I-9 for all employees hired after November 6, 1986, to verify both:

• Identity, and 

• Authorization to work in the United States 

Employers must:

• Ensure employees complete Section 1 on or before their first day of employment 

• Complete Section 2 within three business days of hire 

• Properly retain the forms and ensure they are completed accurately 

Even seemingly minor mistakes, such as missing dates, incomplete fields, or improperly recorded document information, can create compliance exposure.

What Has Changed?

Historically, many I-9 errors were classified as “technical” violations, allowing employers time to correct them without penalty.

ICE’s updated guidance narrows that category.

Now, many errors are being treated as substantive violations, which:

• May result in fines immediately, and 

• Cannot be corrected after the fact 

Examples of Substantive Violations

Under the updated framework, the following are more likely to be treated as substantive violations:

• Failure to include required information in Section 1 (e.g., date of birth or Social Security number, where applicable) 

• Missing or incomplete employee attestation or signature date 

• Failure to properly complete Section 2, including: 

  • Missing document information from List A, B, or C 

  • Missing date of employment 

  • Incomplete employer certification 

In practical terms:

If key fields are missing or incomplete, the form may be considered noncompliant.

What About “Technical” Errors?

Some errors may still be considered technical, for example:

• Certain minor omissions 

• Limited formatting or clerical issues 

However, the scope is narrower than before, and employers should not rely on the assumption that errors can be corrected later.

Why This Matters More Than Ever

ICE enforcement has been increasing, and the updated guidance reflects a broader shift toward stricter compliance expectations.

For employers, this means:

• Greater exposure to financial penalties 

• Less flexibility to correct mistakes 

• Higher stakes during an audit 

Most importantly:

Once you receive a Notice of Inspection (NOI), your ability to fix issues is extremely limited.

Employers are typically required to produce I-9 forms within three business days, and any substantive violations identified at that point may already result in fines.

The Best Time to Audit Is Now

An internal audit is one of the most effective ways to manage risk.

By reviewing your I-9s proactively, you can:

• Identify and correct technical errors (where permitted) 

• Ensure consistency across your workforce 

• Strengthen internal procedures 

• Train staff responsible for onboarding and compliance 

In contrast, waiting for an NOI puts you in a reactive position with little room to correct mistakes.

An internal audit gives you control. An NOI takes it away.

Practical Steps Employers Should Take

To reduce risk and strengthen compliance, employers should consider:

1. Conducting a comprehensive internal I-9 audit Review all current and retained forms for accuracy and completeness. 

2. Working with experienced counsel Proper correction procedures must be followed carefully to avoid creating additional violations. 

3. Reviewing onboarding procedures Ensure that HR personnel understand timing requirements and documentation rules. 

4. Evaluating electronic I-9 systems Confirm that systems meet DHS requirements, including audit trails and data security standards. 

5. Providing regular training Ongoing education helps prevent recurring errors. 

Final Thought

I-9 compliance has always been important—but the margin for error is shrinking.

The question is no longer whether your I-9s will be reviewed, but whether you will review them first.

If you have not conducted an audit recently, now is the time—before ICE does it for you.

© Becky Fu von Trapp, Esq. All rights reserved. This content is original and may not be copied, reproduced, or distributed without attribution and prior permission.