On March 16, 2026, U.S. Immigration and Customs Enforcement (ICE) released a “Fact Sheet” that significantly varies ICE’s longstanding interpretation of Form I-9, the document employers use to verify an individual’s eligibility to work in the U.S.1 By statute, “technical or procedural” errors in completing Form I-9 may be corrected, whereas substantive errors expose the employer to monetary penalties.2 The new Fact Sheet reclassifies several common clerical errors—such as omitting the title of the signatory—from technical failures to substantive violations. As described below, the Fact Sheet’s unexplained changes may be susceptible to challenges under the Administrative Procedure Act (APA).

Form I-9 Background

Sections 1 and 2 of Form I-9 ask for the employee’s identity information and citizenship or immigration status. Section 1 requires the employee to provide information such as their name, address, birth date, email address, and phone number. The employee must also sign and date Section 1. 

Section 2 requires employers to attest that they have reviewed documents confirming the employee’s identity and employment authorization. Such documents include a passport, or the combination of a driver’s license and a Social Security card, among others. For documents provided by the employee, Section 2 requires the employer to provide the document’s issuing authority, document number, and expiration date. The employer must provide the title of the employer (or its representative) and the date of the employee’s hire, and the employer (or representative) must sign and date Section 2.

Form I-9 also includes two supplements. Supplement A is a certification for a translator or preparer who assists the employee in completing Section 1. The preparer/translator must provide their name and address and sign and date the supplement. Supplement B (previously titled Section 3) is for employees requiring reverification, such as an employee who is rehired within three years of their original hire or has legally changed their name. This supplement asks for the date of rehire and any new documentation required for reverification, among other things.

Compliance with I-9 Requirements

An employer who fails to comply with Form I-9 requirements risks civil penalties, ranging from $288 to $2,861 per individual.3

The statute exempts from liability employers who commit “technical or procedural failure[s]” and timely correct those failures.4 To satisfy this “good faith” requirement, the employer must correct the failure, generally within 10 business days after ICE explains the failure to the employer.5 If the employer does not correct the technical or procedural failure, the uncorrected failure becomes a substantive violation. An employer is then subject to civil penalties for the violation.

The statute does not define a technical or procedural failure, or a substantive violation.  Because of the statute’s silence on this issue, ICE released “Interim Guidance” in 1997, also known as the Virtue Memorandum, describing which types of noncompliance were technical and which were substantive.6 In subsequent guidance issued in 2008 and 2009, ICE further clarified the dividing line between technical and substantive errors.7

As the Second Circuit observed, the Virtue Memorandum “distinguishe[d] between violations that effectively undermine immigration requirements (such as not filling out the form at all, or not including the employee’s name)”—which were substantive violations—“and those that create small but solvable problems (such as an omitted birth date)”—which were technical failures and could be corrected.8

ICE’s New Fact Sheet

Without acknowledging its prior policies on the substantive-technical divide, the March 16 Fact Sheet reverses several classifications made in those prior policies. Below are examples of violations that ICE previously classified as technical failures, but that the Fact Sheet now deems to be substantive violations:

  • Completing Form I-9 using the Spanish language form outside of Puerto Rico;
  • Omitting the employee’s birth date in Section 1;
  • Omitting the date of the employee’s signature in Section 1;
  • Omitting the employee’s hire date in Section 2;
  • Omitting the title of the employer’s representative in Section 2;
  • Omitting document title, issuing authority, document number, and/or expiration date (if any) of the document provided to verify identity and employment authorization, even if the employer retains a copy of the document itself; and
  • Omitting the preparer’s and/or translator’s complete name, address, signature, and date in Supplement A.

The Fact Sheet does not explain why such instances of noncompliance are now substantive violations. There is no mention of the prior memoranda on this topic or whether the Fact Sheet supersedes such memoranda.

Potential APA Challenges to the Fact Sheet’s New Classifications

One potential avenue for relief from the Fact Sheet’s new classifications is a challenge under the APA.  The APA requires agencies to engage in reasoned decision-making when promulgating policies and rules. Under the APA, courts “shall . . . hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”9 An agency action may be arbitrary and capricious where the agency fails to provide reasoning for its decision or does not consider important aspects of the problem.10 Where an agency reverses a prior policy, the “agency must at least display awareness that it is changing position and show that there are good reasons for the new policy.”11

The Fact Sheet may be susceptible to challenge under these APA principles. It does not articulate a reason for its classification decisions.12 There is no justification or analysis for classifying some violations as procedural while others are substantive. It does not explain why errors such as a missing birth date now “effectively undermine immigration requirements,” rather than create a “small but solvable problem.”13

A challenger might also argue that ICE failed to consider important aspects of the problem—including the cost to employers from recharacterizing previously technical errors as substantive violations. Likewise, the Fact Sheet is vulnerable to an argument that ICE’s unexplained changes to prior policies—and its failure to even acknowledge those policies—are invalid under Supreme Court precedent. 

A challenger may assert that these new classifications are inconsistent with the best reading of the statute. Under Loper Bright, courts—not agencies—are tasked with deciding the meaning of a statute.14 A court may conclude that errors that ICE now identifies as substantive are, in fact, technical or procedural. For example, a court may decide that errors such as omitting the title of the employer’s representative are best considered technical or procedural because they would not lead to the hiring of an unauthorized employee.

The government may argue that the Fact Sheet is a non-final guidance or policy that should not be subject to APA review. Courts apply a two-part test to determine if agency action is “final.” “First, the action must mark the consummation of the agency’s decisionmaking process . . . And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow.”15

A challenger to the Fact Sheet would have strong responses that both prongs are satisfied. First, the Fact Sheet bears the hallmarks of a final decision. The document does not suggest it is tentative or nonfinal. Indeed, the Office of the Chief Administrative Hearing Officer (OCAHO) within the Executive Office for Immigration Review has held that the Virtue Memorandum’s classifications were binding—and so it is likely the Fact Sheet’s classifications are as well.16 And, while agencies will often include boilerplate language in a guidance or policy stating that the document is not binding and does not create rights or responsibilities, the Fact Sheet does not contain such language. 

Second, “legal consequences” flow from the Fact Sheet. An error that was technical and correctable before March 16, 2026, may now be substantive and uncorrectable, triggering immediate monetary penalties. 

Finally, the fact that an agency proceeds through a Fact Sheet—and not a final rule published in the Federal Register—does not preclude APA review. So long as the agency action is final (and not subject to other jurisdictional bars), it is reviewable, even if it is not a published rule.17

Employers naturally need to pay close attention to the Fact Sheet and redouble their efforts to complete Form I-9 fully and accurately. For employers with large numbers of employees and Form I-9s, the potential exposure under the new rules could be significant. Those who face monetary penalties for newly “substantive” violations, however, may have strong arguments that the Fact Sheet fails APA review. Such arguments could be raised in an affirmative challenge to the Fact Sheet, or in response to an enforcement action relying on the Fact Sheet.

1 U.S. Immigration and Customs Enforcement, Form I-9 Inspection Under Immigration and Nationality Act 274A (Mar. 16, 2026),available at https://www.ice.gov/factsheets/i9-inspection.

2 8 U.S.C. § 1324a(b)(6).

3 90 Fed. Reg. 1, 4 (Jan. 2, 2025).

4 8 U.S.C. § 1324a(b)(6)(employers are “considered to have complied” with the I-9 requirements where they commit a “technical or procedural failure” and “there was a good faith attempt to comply with the requirement”).

5 Id.

6 Memorandum from Paul W. Virtue, INS Acting Executive Commissioner of Programs, Interim Guidelines: Section 274A(b)(6) of the Immigration & Nationality Act Added by Section 411 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Mar, 6, 1997).

7 U.S. Immigration and Customs Enforcement, Guide to Administrative Form I-9 Inspections and Civil Monetary Penalties (Nov. 25, 2008) (“2008 Memorandum”), available at https://www.ice.gov/doclib/foia/policy/RevisedAdminFinePolicyProcs_11.25.2008.pdf; Operations Message (July 13, 2009), available at https://mcchra.mcca.org/wp-content/uploads/Substantive-and-Technical-Information-for-I-9-Forms.pdf.

8 Buffalo Transportation, Inc. v. United States, 844 F.3d 381, 385 (2d Cir. 2016); see also 2008 Memorandum at 11 (“The test of whether a verification violation is either technical or substantive lies in the seriousness of the error and whether or not it could have led to the hiring of an unauthorized alien.”).

9 5 U.S.C. § 706(2).

10 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

11 Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016)(internal quotation marks omitted).

12 Dep’t of Commerce v. New York, 588 U.S. 752, 780 (2019) (“in order to permit meaningful judicial review, an agency must disclose the basis of its action” (internal quotation marks omitted)).

13 Buffalo Transportation, 844 F.3d at 385.

14 Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024).

15 Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted)

16 See, e.g., United States v. WSC Plumbing, Inc., 9 OCAHO no. 1071, 11-12 (2001).

17 See Perez v. Mortgage Bankers, 575 U.S. 92, 106 (2015); California Communities Against Toxics v. EPA, 934 F.3d 627, 635 (D.C. Cir. 2019).  A challenger may also assert that the Fact Sheet should have proceeded through notice-and-comment rulemaking.