What employers should review after the 2026 I-9 guidance change

Where to focus your I-9 review

The March 2026 guidance changed how ICE classifies several common Form I-9 errors during inspections. The underlying form completion requirements and cited penalty schedule remained the same. Four areas deserve attention during your next records review.

1. Reclassified errors. More than ten categories previously treated as technical are now substantive. The updated fact sheet lists 28 substantive categories overall.
2. Correction periods. The ten-business-day good-faith correction period applies to technical violations. The reclassified errors fall outside that period.
3. Updated inspection guidance. ICE changed the classifications in its inspection fact sheet rather than through a new regulation. The revised guidance changes classifications previously addressed in the 1997 Virtue Memorandum.
4. Remote and electronic records. The guidance also covers alternative remote document examination and electronic I-9 systems, and treats certain gaps in alternative-procedure documentation, record retention, and audit trails as substantive.

Many of the affected errors involve onboarding information, including employee details, signatures, and document information. The sections below explain which I-9 fields to check, what to review in remote and electronic records, and how to document corrections. You can also check exempt employee classifications during the same records review.

I-9 fields to review

Employment law firms comparing the March 2026 ICE guidance with the earlier Virtue Memorandum identified several affected fields.

Examples include missing employee dates of birth, missing USCIS or Alien Registration numbers when provided, missing first dates of employment, and missing signatures or dates in Sections 1 and 2.

Other examples include incomplete List A, B, or C document information in Section 2, missing employer information, and missing preparer or translator information when applicable.

Check each form for these entries. Have the appropriate person make corrections, then record what changed and when.

Remote verification and electronic I-9 systems

The guidance also addresses remote document examination and electronic I-9 systems.

An employer that uses the alternative remote examination procedure must be an E-Verify participant in good standing. The employer must also record that it used the procedure, including marking the alternative-procedure checkbox in Section 2 or Supplement B.

ICE now classifies certain missing alternative-procedure documentation as substantive. For electronic I-9 systems, the fact sheet also treats failures to meet the applicable requirements as substantive. Those requirements cover completion, record retention, audit trails, electronic signatures, and system security.

Confirm your E-Verify enrollment and check how your system documents each required step. During an inspection, ICE examines the required documentation as well as the employee's underlying work authorization.

Check exempt classifications while reviewing employee records

While reviewing employee records, check exempt classifications as well.

The federal salary floor for the executive, administrative, and professional exemptions is $684 a week, or $35,568 a year. The highly compensated employee threshold is $107,432 a year.

The 2019 federal thresholds apply again. Federal district courts in Texas vacated the 2024 rule that would have raised those thresholds. On 15 May 2026, the Department of Labor published a technical amendment formally rescinding the 2024 rule and restoring the 2019 thresholds.

An exempt classification must satisfy the applicable duties test as well as the salary requirements. Several states set higher exempt salary thresholds. Employers with employees in multiple states must check the applicable state requirements alongside the federal thresholds.

The FLSA exempt salary threshold note explains the federal thresholds and the duties test.

Automatic EAD extensions and Form I-9

On 14 October 2026, the Department of Homeland Security published a final rule, Federal Register document 2026-20955, confirming the change that took effect on 30 October 2025. For certain renewal categories, applications filed on or after 30 October 2025 no longer automatically extend expiring Employment Authorization Documents (EADs). Extensions provided by law or by a Federal Register notice, such as a notice for Temporary Protected Status, continue to apply.

Eligible renewal applications properly and timely filed before 30 October 2025 can still qualify for an automatic extension of up to 540 days. When reverifying an employee whose EAD has expired, check the filing date on the renewal receipt notice and confirm whether an extension applies.

Form I-9 edition 01/20/25 shows an expiration date of 05/31/2027.

How to review and correct I-9 records

Review I-9 records regularly and keep a dated record of your findings.

Have employees correct their Section 1 entries and employers correct their Section 2 entries. Preserve the original record and date each correction when it is made.

Complete any missing forms and record the actual date of completion. Refer disputed classifications and complex corrections to qualified employment or immigration counsel.

Keep a correction log with the changes made and the date of each correction.

Questions to cover during your I-9 review

• Which I-9 errors qualify for the ten-business-day correction period? The ten-business-day good-faith correction period applies to technical violations only. ICE now treats the reclassified errors as substantive. Regular records reviews help you identify and document corrections before an inspection.
• Does a document copy satisfy the Section 2 information requirement? Incomplete List A, B, or C document data in Section 2 is now substantive even where the employer kept a copy of the underlying document. Section 2 requires the applicable document information to be entered on the form. Complete those entries even when copies of the underlying documents are retained.
• What records should I check for remote verification? Using the alternative procedure without being an E-Verify participant in good standing, or without marking the alternative-procedure checkbox, is now a substantive error. Record the required information whenever the alternative procedure is used.
• How should I date an I-9 correction? Preserve the original entry and record the actual date of each correction. Date each correction on the day it is made. Complete missing forms using the actual completion date.