Quickly changing immigration policies have made compliance a moving target for HR, and a new update to one of the most common employer-facing immigration processes is primed to complicate the landscape further.

Last month, Immigrations & Customs Enforcement revised its standard I-9 fact sheet to reflect a new approach to enforcement. In particular, it reclassified a number of violations long considered as minor—from technical errors to more serious violations—eliminating the opportunity for corrections and creating the potential for immediate fines.

“The reclassification of errors raises the stakes of inspections in an already aggressive enforcement environment,” wrote attorneys from employment law firm Littler on the update.

What do the I-9 reclassification changes mean?

Traditionally, ICE has categorized I-9 errors into one of two buckets: Technical violations have largely been related to minor paperwork issues—a missing date of birth or hire date, for instance. When such errors surface in an inspection, the agency gives an organization 10 business days to correct them. On the other hand, substantive violations, which are immediately fineable, have historically “been reserved for really serious issues that could lead to the hiring of an unauthorized worker, like no signature on a form,” says John Fay, attorney, I-9 expert and director of product strategy at Equifax Workforce Solutions.

In addition to adding seven new violations to the technical category, last month’s update shifted nearly a dozen violations previously assessed as technical into the substantive category—like a missing employer representative name or title, or the failure to provide a date next to an employee’s signature in the form’s Section 1.

“ICE seems to be saying these things that were considered minor, clerical errors are now going to be treated as serious and subject to penalties, without the opportunity to correct,” Fay says.

Fines for a substantive violation or uncorrected technical violation typically range from a couple of hundred dollars to over $2,000 per I-9. Traditionally, Fay explains, ICE has set the fine by taking a broad look at how many problematic I-9s the organization has at a time, with higher fines for employers with more instances of violations.

“If you’re a medium or large employer and have a lot of these,” Fay says, “these fines are going to very quickly add up.”

Where blind spots will emerge

The financial and legal risks from the I-9 updates will vary among employers. Smaller and midsized businesses, Fay notes, are particularly at risk as they’re more likely than enterprise organizations to rely on paper I-9 records.

“Those tend to be more error-prone,” Fay says. Historically, such mistakes usually weren’t “catastrophic,” but, especially for smaller organizations, the potential for immediate fines with the updates could bring significant financial fallout.

“Especially if you have a large population of older paper forms,” he says, “that’s one way exposure is going to really add up.”

Organizations that typically have relied on documentation copies as a safety net will also need to reassess. Among the other changes in the update, ICE dropped the previous rule that treated violations on Section 2 data as technical if the employer could surface a documentation copy. For instance, previously if an I-9 preparer wrote down the wrong passport expiration date, but a copy of the passport with the correct date was retained in the record, the organization would have 10 days to correct the form before a fine.

“Now, even if you have a copy, failure to record correctly that first time will be treated more seriously,” Fay says. “It’s a meaningful shift that is going to reduce the ability to rely on documentation copies to cure errors after the fact.”

Tightening compliance today

Any time an I-9 change has rolled out, Fay says he urges employers to conduct an internal audit: Review forms, identify issues and correct where possible—an assessment that should be undertaken with particular urgency for organizations maintaining paper records.

He notes that traditionally, ICE has viewed “good faith compliance”—employers finding and seeking to correct errors before the government shows up with its own inspection—as a “much stronger” position than those who take a more reactive approach.

“Despite the reclassification,” he says, “I think that will still factor into how the cases are handled.”

Also important is HR employee training. Most violations, Fay notes, are not related to bad intent, but rather inefficient processes or the fact that different HR professionals are filling out forms. Training that streamlines the approach, he says, can help employers reduce risk.

HR leaders need to continue to prioritize I-9 compliance, particularly given the broader landscape in which these updates unfolded. Since President Trump’s second term began, the administration has had a renewed focus on worksite enforcement, with the I-9 becoming an “increasingly very important administrative tool” for the government, Fay says.

ICE is looking at the I-9 as an “entry point to broader enforcement,” he adds. “The process hasn’t changed, but they are changing how closely the process is being examined and how much weight is being placed on the details.”

Employers don’t need to reinvent the wheel necessarily when it comes to their I-9 management, but rather approach it from the lens of being even more disciplined and consistent.

“This is a new level of scrutiny on some very old requirements,” Fay says.

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