ICE enforcement has changed materially in 2026. The employers who fare best are the ones who treated compliance as a year-round obligation, not a crisis response.

Notices of Inspection (“NOI”) from United States Immigration and Customs Enforcement (“ICE”) have more than doubled in the first quarter of 2026 compared to the same period last year. Fine amounts are higher. Audits are happening closer together. And the scope of what investigators are demanding has expanded well beyond a stack of I-9 forms. If you run a business and you have employees, this is the enforcement environment you are operating in.

What follows is a practical breakdown of how ICE investigations work, where employers most commonly go wrong, and what can actually be done before an investigator shows up at the door.

How an ICE Investigation Starts

The most common entry point is the NOI, a formal subpoena requiring the employer to produce I-9 records. The production window is 72 hours. This timeline sounds manageable until you account for the volume the NOI encompasses: all current employees, plus terminated employees from the past twelve months, plus copies of any supporting documents retained. ICE agents previously hand-delivered these notices. However, ICE agents are increasingly transitioning to email delivery for NOIs. The effect? The record gathering clock starts before anyone has a chance to call counsel.

Outside of the record production, the NOI will also typically asks whether the employer has been subject to a prior investigation. This is not a neutral question. A prior investigation, combined with continued errors, supports a willfulness finding — which raises the applicable fine range and, in egregious cases, can support a criminal referral. It is vital that you contact counsel to assist in your NOI response, fully advise you of the related risks, and to assist you in the creation of a risk mitigation plan. 

What Investigators Are Actually Looking For

The I-9 form itself remains the core document, but ICE has broadened its investigative lens considerably. Subpoenas now regularly include requests for payroll records, tax filings, and wage data. Investigators use these to verify that the employer’s workforce list is complete and accurate — and to identify whether workers classified as independent contractors or placed through staffing agencies should have had I-9s completed.

The Fair Labor Standards Act (“FLSA”) classification analysis embedded in this process is intentional. If ICE concludes that a staffing agency worker or independent contractor is, under the economic realities test, actually the employer’s employee, the employer should have completed an I-9 for that worker. If they did not, that is a substantive violation.

Employers with H-1B or L-1 sponsored employees are seeing a separate track of scrutiny focused on whether those employees are performing the duties described in their visa petitions, and whether the representations made to USCIS were accurate.

Understanding the Three Categories of I-9 Errors

Not every error carries the same weight, and the distinction matters for how an employer responds.

Technical errors are minor omissions or formatting issues that ICE will generally allow an employer to correct before imposing a fine. Fixing them within ten (10) business days eliminates the monetary exposure. Failing to fix the errors adequately within ten (10) business days results in a substantive violation. Getting counsel to review your proposed NOI response at a minimum will assist with catching these errors (or adequately correcting any errors) before the response goes out the door, saving you money and the additional hassle.

Substantive errors are more serious omissions or inaccuracies on the form itself. Fines range from approximately $288 to $2,800 per violation. At scale, these add up quickly. An employer with 500 employees and even a modest error rate can face six-figure exposure without realizing it. The 72-hour NOI response timeline, especially when you have 500 or more employees, will feel especially tight and bring with it the increased chance of human error. You don’t have to complete an NOI response alone; there are professionals here to help.

The third category involves what practitioners call continuing-to-employ violations. These occur when an employee’s work authorization document expires and the employer fails to re-verify. The fact that the original I-9 was completed correctly provides no protection. The violation is the failure to act when re-verification was required, and fines for this category range from roughly $700 to over $5,000 per instance.

There is also a category of uncorrectable errors. If an employer completes an I-9 after the statutory deadline — the end of the employee’s first day for Section 1, the third business day of employment for Section 2 — that error cannot be backdated or remediated. An internal audit can stop the practice going forward, but it cannot eliminate the existing violation. The fine applies.

Constructive Knowledge: How Employers End Up Liable Without Knowing It

Federal law prohibits knowingly employing unauthorized workers. “Knowing” includes constructive knowledge — circumstances where the employer had information sufficient to put a reasonable person on notice, and failed to act on it.

This is where many employers are exposed without realizing it. IRS Form 1095-C filings, required under the Affordable Care Act, produce mismatch notices when an employee’s name and Social Security number do not correspond. For large employers, these notices can run into the hundreds. ICE has used this data in enforcement proceedings to argue that the employer had notice of potential unauthorized workers in its workforce and chose not to investigate.

Other constructive knowledge triggers include: background check results flagging a Social Security number mismatch, notifications from the Texas Workforce Agency or equivalent state agencies, and inconsistencies identified during 401(k) enrollment or benefits verification. None of these individually proves a violation, but any of them — particularly in combination, or after the employer has been put on notice through a prior audit — can support an aggressive enforcement posture from ICE.

Document Review: The Employer’s Actual Obligation

Section 2 of the I-9 requires the employer to attest, under penalty of perjury, that the documents presented by the employee appear genuine and relate to the employee presenting them. This is not a passive checkbox. Investigators have used the determination that presented documents were obviously fraudulent as the basis for seeking arrest warrants, on the theory that the employer should have known the documents were not legitimate.

Employers are not required to be document forensics experts. But the attestation is a legal representation, and the employees completing Section 2 need to understand what it means and what they are looking for. Training is not optional; it is the foundation of a good-faith defense.

E-Verify Does Not Solve This

E-Verify is a useful tool and, in states where it is mandatory, non-negotiable. But enrollment in E-Verify does not cure I-9 errors. The two processes are legally distinct. An employer can use E-Verify correctly and still face substantial I-9 fines for late completion, missing signatures, or inadequate document review. E-Verify provides a good-faith defense in certain situations, but it is not a comprehensive shield.

What Employers Should Do Now

Audit. This is the foundational step and the only one that creates an accurate picture of current exposure. Internal audits are permissible, but they must be conducted by someone with actual training in I-9 compliance. An untrained reviewer who creates new errors while attempting to correct existing ones has made the situation worse, not better.

A statistical sampling approach — auditing a representative pool and extrapolating the findings across the workforce — is acceptable and often practical for larger employers.

Once errors are identified and corrected to the extent possible, the remediation process should be documented. Training should follow and be confirmed in writing. Standard operating procedures for ICE arrival scenarios should be drafted and tested. A mock inspection is not excessive; it is risk management.

I-9 compliance language belongs in the employee handbook. It is a visible signal of good-faith compliance, which is a factor in enforcement outcomes. It also puts management on formal notice of the obligation, which matters if a subsequent violation is contested.

The time to do all of this is before ICE appears. Once a Notice of Inspection arrives, the window for remediation has closed.

If your I-9 compliance program has not been reviewed recently, it may be worth taking a closer look before someone else does.