New ICE Guidance with Heightened Consequences for Form I-9 Compliance

 

U.S. Immigration and Customs Enforcement (ICE) has recently updated its Form I-9 inspection fact sheet, signaling a major shift in how the agency penalizes paperwork errors. For nearly thirty years, employers operated under a stable framework that distinguished between "technical" errors, which could be corrected without penalty, and "substantive" violations, which triggered immediate fines.

The revised guidance significantly narrows that window for correction, reclassifying several common errors as immediate substantive violations.

From "Correctable" to "Costly": What has Changed?

Historically, if an employer accidentally omitted a document number or expiration date in Section 2, it was often treated as a technical error—provided a legible copy of that document was kept on file. Under the new March 16, 2026 guidance, these omissions are now substantive violations subject to immediate monetary penalties, regardless of whether a copy of the document exists.

The reclassifications span several parts of the form:

• Section 1 Errors: Common mistakes like missing dates of birth or missing employee signature dates have moved from technical to substantive.

• Section 2 & 3 Omissions: Missing the "date of hire" or the title of the authorized representative is no longer a simple fix; these are now flagged as substantive.

• Remote & Digital Process Failures: ICE is placing a heavier emphasis on process-based violations. This includes using the Spanish-language Form I-9 outside of Puerto Rico or failing to follow the strict "alternative procedure" requirements for remote document examination, such as being an active E-Verify participant.

While some new categories were introduced as technical violations—such as failing to record an employee's "other last names used"—the overall trend suggests a much more aggressive penalty landscape for employers.

Employers Should Audit their Legacy I-9s 

The sudden nature of these changes means that employers are not given fair notice before implementation. Substantive shifts in enforcement policy typically require formal rulemaking or binding guidance. Overhauling a penalty framework through a fact sheet may not be legally sufficient notice. Congress created the law relating to I-9 civil violations with a "good faith" framework designed to protect employers from being penalized for minor clerical errors.

Despite the heightened risk, the importance of "good faith" remediation has not diminished. Identifying and addressing errors before an official inspection occurs remains a vital defense strategy. Employers should revisit their internal audit protocols immediately, as violations can trigger substantial civil fines. This includes reviewing legacy I-9 forms in light of the new guidance and ensuring that any remote verification systems or electronic I-9 software are fully aligned with the latest regulatory requirements. Because a five-year statute of limitations typically applies to paperwork violations , the risk of errors in legacy Forms I-9 remains a critical concern for employers under the newly heightened enforcement standards.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

New Rule on Civil Fines for Immigration Violations

DHS issued an interim final rule to speed up the civil fine process on immigration violations, targeting both individuals and companies.   The rule is expected to be published on Friday, 6/27/2025, and will take effect immediately. 

The new penalty amounts apply to violations assessed after January 2, 2025, for violations occurring after November 2, 2015. The rule targets individuals and entities who violate U.S. immigration laws, including:  

• Individuals who enter the U.S. illegally
• Those who fail to depart after an order of removal or voluntary departure
• Employers who knowingly hire or continue to employ unauthorized workers
• Persons committing document fraud related to immigration.

Civil Fines for Immigration Violations

A person can be fined from $100 to $500 for each time they enter the U.S. illegally.  Individuals who fail to depart voluntarily as ordered will be fined between $1,992 and $9,970, and those who fail to depart pursuant to a removal order will be fined up to $998.  Fines are adjusted annually for inflation.

Employers are also subject to civil penalties for hiring undocumented workers.  For 2025, penalties for knowingly employing undocumented workers range from $716 to $5,724 for a first offense. Fines will increase substantially for second and subsequent offenses.  In fact, the employer can be subject to criminal prosecution for knowingly hiring unauthorized workers.

There are other immigration-related civil penalties. Fines for I-9 violations, document fraud, and related offenses are also increased. Currently, the fines range from $288 to $2861 for one violation.  I-9 violations, or paperwork violations, are common among smaller employers. They often fail to properly or timely complete the I-9 form for new hires. The law requires that they must properly complete the I-9 form within three days of the start date of employment. Or, sometimes, they are confused about what documents they may accept to verify an employee's identity or employment eligibility, which would also result in violations and fines. 

Notice and Collection Process

The new rule streamlines and expedites the penalty process, allowing DHS/ICE to issue and collect fines more quickly.  Individuals and entities will receive formal notice of the alleged violation and the proposed penalty, consistent with administrative procedures. Notices can be sent to parties by regular mail rather than certified mail.  Notices will specify the violation, the amount of the penalty, and information on how to respond or appeal.  Affected parties will only have 15 days to file an appeal, instead of the previous 30 days.  Further, instead of having the Board of Immigration Appeals handle appeals, DHS now has the authority to review these appeals.

Purpose and Impact

The rule is intended to deter unlawful entry and related violations by increasing the speed and certainty of civil penalty enforcement.  It also aims at punishing individuals who fail to depart the United States after they have been granted voluntary departure or ordered deported.  The streamlined process aims to allow DHS to impose more penalties, more quickly, and thereby enhance deterrence. 

In Summary

The new DHS rule increases civil fines for a range of immigration-related violations, including illegal entry, and takes effect immediately upon publication. Fines are adjusted for inflation (about 1% higher for 2025), with first-time penalties for certain violations (like employing unauthorized workers) now starting at $716. The process for notice and collection has been expedited to enhance enforcement and deterrence

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Don't Overlook That I-9 Form: It Could Cost Employers Dearly!

Employers and those looking to hire must be extremely thorough when verifying employee documents and properly filling out Employment Eligibility Verification Form I-9.  Civil fines ranging from hundreds to thousands of dollars can be imposed on employers who fail to follow the rules by, for example, checking the wrong box in the form. Repeated violations, especially with multiple employees, can accumulate into a large sum. An employer can even go to jail for knowingly employing undocumented workers.

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This year, the Homeland Security Investigations (HSI) branch of Immigration and Customs Enforcement (ICE) has beefed up its efforts to crack down on employers. The HSI conducted Form I-9 audits nationwide, serving 5,278 total Notices of Inspection (NOI) and making 93 arrests. Given this stricter environment, employers should ensure they are properly complying with I-9 guidelines.

Form I-9 audits begin with HSI serving an employer a NOI, informing them of the investigation and giving them 3 business days to produce company I-9 forms. Any violation in the documents or employer eligibility can result in civil fines. Simple clerical mistakes could trigger large sums of fines.

The civil fine for the first offense is $220 per single violation and increases substantially to $1,096 on the second offense. The third offense onward will fine the employer a hefty $2,191. These costs multiplied by several employees can equal tens or even hundreds of thousands of dollars. For example, Hartmann Studios, an event design and production company, was fined $600,000 in 2015 for basically failing to sign Section 2 of the employee I-9 forms. 

The more serious fines HSI can impose on employers are when an employer knowingly and/or repeatedly hires ineligible employees. A first offense fines the employer $548 per violation.  The third offense and onward fines can be up to $19,242.  The employer can even be subject to criminal arrest for these serious "knowingly hire" violations.

Further, some businesses such as restaurants provide housing or shelters to employees as an accommodation.  However, providing housing or shelter could be viewed as illegally harboring illegal immigrants if the employees have no legal immigration status.

Employers and workers should expect a continuation of this heightened enforcement. Employers especially should take care to have employment documentation in order. Sloppily filled out I-9 forms can end up costing thousands in fines.

New I-9 Form Is Out!

Starting January 21, 2017, employers must use the new version of the Form I-9, Employment Eligibility Verification, recently published by USCIS.


These are some of the changes in the new version:

• Employees only need to provide other last names used in Section 1. 
• The certification in Section 1 for certain foreign nationals takes less time to complete.
• There are additional spaces to enter multiple preparers and translators.
• There is a dedicated area to enter additional information that employers have been required to notate in the margins of the form.

The electronic version of the form has also some added features to make it easier to complete and print out the form.

The I-9 form was created to assist employers verify new employees' eligibility to work legally in the U.S.  Failure to timely and properly complete the form can lead to substantial civil monetary fines. Knowing hiring of illegal workers may also lead to criminal charges.

Employers may accept expired TIPS-related EAD with auto-extension

TPS (Temporary Protected Status) is a special status that the U.S. grants to nationals of other countries who are already present in the U.S. from time to time. In general, the Secretary of Homeland Security (DHS) may designate a foreign country for TPS when the country conditions make it dangerous for its nationals to return to, or the country is unable to handle the return of its nationals safely or adequately. TPS is usually granted when there is ongoing armed conflict (such as civil war), an environmental disaster (such as earthquake or hurricane), or other extraordinary and temporary conditions. During a designated TPS period, eligible foreign nationals are not deportable from the United States, cannot be detained by DHS, can obtain an employment authorization document (EAD), and may apply for travel authorization. Countries that were designated for TPS include El Salvador, Honduras, Nicaragua, Somalia, Sudan, and most recently, Haiti.

The USCIS has issued the following instructions to employers regarding the use of TPS-related EAD by employees:

"Employers: If presented for completion of Form I-9 by your employee, you must accept a TPS-related EAD that is expired on its face if it nevertheless remains unexpired based on an auto-extension of the EAD by DHS as announced in a notice published in the Federal Register. Also, the card must reasonably appear on its face to be genuine and to relate to the employee presenting it to be acceptable. The following
information will appear on the card:
1. The notation “A-12” or “C-19” appears on the face of the EAD under “Category.”
2. The expiration date of the most recent TPS extension period on the face of the card. This date will appear in the Federal Register notice announcing the auto-extension of EADs and may also be found at www.uscis.gov/tps.
Employers should enter the document name, number, and expiration date in Section 2 under List A, noting the end of the auto-extension period. You may not request that an employee provide proof that he or she is a national of a country that has been designated for TPS. When the automatic extension of the EAD expires, you must reverify the employee’s employment authorization. The employee may choose to present an unexpired EAD with an updated expiration date, or any other document from List A or C of Form I-9 evidencing that he or she continues to be authorized
to work in the United States. You should enter the document name, number and expiration date in Section 3 of the Form I-9. In addition to completing the Form I-9 process described above, employers that participate in E-Verify may also confirm the employment authorization of the TPS beneficiary by submitting the required data from the Form I-9 to E-Verify. However, the employer may only check the employment authorization of new hires through E-Verify. If the TPS beneficiary is a current employee, the employer may not use EVerify to confirm employment authorization and should complete only the reverification required in Section 3 of the Form I-9."

Obama Administration’s Immigration Policy

The Obama Administration is making plans to make changes in the U.S. immigration system and policy. The Administration is announcing initiatives that pave the way for immigration reform. Just recently, the Secretary of Homeland Security, Janet Napolitano, testified about her plans to protect our borders and enforce our immigration laws in smarter and more effective ways. Ms. Napolitano is Arizona’s former governor and is very familiar with immigration issues especially border security issues. In 2005, she declared a state of emergency along her state’s border with Mexico. To get funding for immigration reform, the Obama Administration released a $27 billion plan for border and transportation security, part of the 2010 budget he is presenting to Congress.

The administration’s new plan will emphasize several areas of law enforcement, including using agency resources to catch the most dangerous alien criminals in this country; enhancing employment-verification systems that are currently being piloted; hiring additional agents and beefing up security at air and seaports; and expanded screening for dangerous criminals in jails. When testifying before Congress, Secretary Napolitano recognized the human issues involved in enforcement of immigration laws and expressed her support for the DREAM Act. The administration also expressed that humanitarian guidelines will be used more in enforcing immigration laws.

One focus that the Obama Administration has repeatedly emphasized is employer compliance. Employers who hire unauthorized workers or who fail to comply with immigration regulations and maintain proper documentation will be penalized. This is a shift from the worksite enforcement policies targeting at authorized workers during the Bush era. To enforce the new policy, the E-Verify system will be upgraded and further promoted to the business community.

To have a comprehensive reform of the immigration system, the administration policy also includes additional benefits for immigrants. For example, the 2010 budget increased funding to reduce the application fees and reduce the processing times of immigration applications. The filing fees for immigration fees were increased substantially in 2007. For example, the current filing fee for naturalization is $675. An immigrant-integration office at U.S. Citizen and Immigration Services will also be created to provide grants to community groups that help immigrants prepare for citizenship tests and learn English. To alleviate the severe backlog of pending deportation cases, additional funding will create jobs for 28 new immigration judges nationwide.

Although the administration did mention that it’s comprehensive immigration reform plan may include a path for the millions of undocumented aliens to gain legal status, no specifics have been released yet. The administration will schedule hearings to gather expert opinions before making any concrete proposal in this area. It is expected that the issue will generate intensive debates.