Immigration Reform and Control Act requires that all U.S. employers verify the identity and eligibility of all workers, whether they are American citizens or not, by completing the Employment Eligibility Verification Form I-9.  An employer must retain these forms for all employees either for three years after the date of hire or for one year after employment is terminated, whichever is later.

At any time, the Department of Homeland Security, Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice may request all I-9’s on file for any given U.S. employer. During review, if errors are found in the I-9 documentation, or forms are missing, or if it is discovered that an employer “knowingly” continued to employ an unauthorized worker, the employer may be subject to serious penalties

In recent years, the Department of Homeland Security has increasingly targeted the workplace as a way to keep an eye on foreign nationals. The civil fines for paperwork violations can be hefty. The current cost of an I-9 error is a fine ranging from $288 to $2,861 per violation for technical or substantive errors, as of early 2025. The number of criminal prosecutions of employers found to be in violation of I-9 employment eligibility verification has also risen steadily over the past few years. With stricter enforcement efforts, it is important that you consult an immigration attorney who can provide your business with I-9 compliance assistance.

Our attorneys can protect you and your employees in the following ways:

  • Develop and maintain an I-9 compliance plan for your business
  • Perform an internal audit of all I-9 forms to ensure that your business has the ability to promptly comply with an audit from the governmental agencies listed above
  • Correct any errors found on your employees’ I-9 paperwork
  • Train your staff on I-9 procedures and verification
  • Prepare your I-9 documentation for audits from the Department of Homeland Security, Immigration and Customs Enforcement and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice
  • Assist with negotiation and settlement of penalties which may arise from failure to comply with all I-9 verification procedures

Sample I-9 Summary for ICE to Provide Minimum Indicators of Due Diligence in Verifying Employees  

The following Report is an simple summary of the I-9 procedures in place for a company that handles only paper I-9s. A level of complexity is added when the employer uses a software company to keep the I-9s because the dating of the software and the security of the records must be explained (generally by working with the software company an keep regular printouts of self-audits of I-9s).

SAMPLE REPORT TO ICE FOR TO SHOW DUE DILIGENCE IN I-9 VERIFICATIONS

Our firm will assemble a document with you to hand over to ICE following an onsite visit where ICE has asked to check a company’s I-9 Records. This is generally a short document that provides basic answers to questions provided by ICE. It includes the documents US ICE requests (usually the I-9s and payroll records, at a minimum) and information in segments spanning data about

  • The company, location, ownership and number of W-2 employees.
  • Information about the type of work employees do.
  • How payroll is run.
  • Information about the HR Managers in charge of hiring and I-9s.
  • The method of I-9 preparation by company and employee, in detail.
  • Generation and storage of I-9s, including security, indexing and self-audits.
  • Use of government databases.

WHAT HAPPENS STARTING WITH THE VISIT FROM ICE AND AFTERWARDS

Essentially ICE visits the premises of an employer and begins what is a series of visits to ensure that the company is not employing workers who are not authorized to work. The series of steps generally flows like this, and we discuss what happens to the employees who are lost in the process because they realize they cannot comply with the requests for valid work authorization.

I-9 Check by ICE & Process with a Round of Reverifications                                                            

  1. ICE walks onto employer’s premises and hands a Notice to the Employer asking for I-9s
  1. Employer asks for 3 business days or is told he has longer; ASAP checks that he has I-9s for all workers, against his payroll list
  1. Hands documents to ICE in 3 days (I-9s and payroll)
  1. In 2-4 months, ICE sends another letter with non-matching names, gives the company __ days to respond; ICE requests more data – options include:
    1. 3 years of payroll records
    2. Financials
    3. W-2s & 1099s
    4. SS No Match letters, if any
    5. No evidence they request proof of good faith but it’s implicit; so add I-9 procedure details if it helps
  1. Company drafts and gives a letter to employees stating the need for Reverifications.
  • First wave of employees leaves because they know the company is under investigation
  1. Company re-verifies certain employees; ie, does new I-9s.
  • Second wave of employees leave. Unknown why they hung in there (need money badly; figured they have really good documents)
  • Some employees who can, may sue the employer for discrimination
  • Some employees, even illegals ask for unpaid vacation
  1. Company provides letters, new list of employee to ICE & new I-9s and a new payroll record. (depends on the request if all this is needed).
  1. Apx __ months later, ICE provides a request for an update on S, T, U, V, W, X, Y, Z employees. Company has __ days to provide info about these employees who did not check out.
  1. Company gives a second letter to Employees S-through-Z.
  • Third wave of employees leave.
  1. ICE returns to check I-9 records compliance sometime afterwards. Sometimes.

Ideal Method of I-9 Preparation / Reviewing Documents

The method of I-9 preparation for your company should be the following:

  • Employees get a packet when they are extended an offer. They have an online link to Section 1 (and the acceptable work and identity authorization documents), or a paper I-9 in the Offer Packet (or a link to eVerify).
  • Employee fills in Section 1 before the first day of employment (or completes this by the end of the 3rd day of employment).
  • HR reviews the original documents proving identity or work authorization; and records the documents that the employee physically demonstrates (hands over or shows on-screen through an authorized agent or authorized webcam portal) to HR.
  • HR should get all information for Section 2 to fill it in with the employee before signing, before the end of the 3rd day of employment.

Termination Procedures

Don’t forget to terminate employees in a timely manner and immediately move their Form I-9 to a Terminated Folder.  Their I-9 should stay accessible (not be discarded) for the later of (a) one year past their termination date or (b) 3 years from the date of hire, ie, if they worked for you less than 2 years. 

I-9 Compliance

Immigration Reform and Control Act requires that all U.S. employers verify the identity and eligibility of all workers, whether they are American citizens or not, by completing the Employment Eligibility Verification Form I-9.  An employer must retain these forms for all employees either for three years after the date of hire or for one year after employment is terminated, whichever is later.

At any time, the Department of Homeland Security, Department of Labor, and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice may request all I-9’s on file for any given U.S. employer. During review, if errors are found in the I-9 documentation, or forms are missing, or if it is discovered that an employer “knowingly” continued to employ an unauthorized worker, the employer may be subject to serious penalties

In recent years, the Department of Homeland Security has increasingly targeted the workplace as a way to keep an eye on foreign nationals. The civil fines for paperwork violations can be hefty. The current cost of an I-9 error is a fine ranging from $288 to $2,861 per violation for technical or substantive errors, as of early 2025. The number of criminal prosecutions of employers found to be in violation of I-9 employment eligibility verification has also risen steadily over the past few years. With stricter enforcement efforts, it is important that you consult an immigration attorney who can provide your business with I-9 compliance assistance.

Our attorneys can protect you and your employees in the following ways:

  • Develop and maintain an I-9 compliance plan for your business
  • Perform an internal audit of all I-9 forms to ensure that your business has the ability to promptly comply with an audit from the governmental agencies listed above
  • Correct any errors found on your employees’ I-9 paperwork
  • Train your staff on I-9 procedures and verification
  • Prepare your I-9 documentation for audits from the Department of Homeland Security, Immigration and Customs Enforcement and/or the Office of Special Counsel for Unfair Immigration-Related Employment Practice of the Department of Justice
  • Assist with negotiation and settlement of penalties which may arise from failure to comply with all I-9 verification procedures

Sample I-9 Summary for ICE to Provide Minimum Indicators of Due Diligence in Verifying Employees  

The following Report is an simple summary of the I-9 procedures in place for a company that handles only paper I-9s. A level of complexity is added when the employer uses a software company to keep the I-9s because the dating of the software and the security of the records must be explained (generally by working with the software company an keep regular printouts of self-audits of I-9s).

SAMPLE REPORT TO ICE FOR TO SHOW DUE DILIGENCE IN I-9 VERIFICATIONS

Our firm will assemble a document with you to hand over to ICE following an onsite visit where ICE has asked to check a company’s I-9 Records. This is generally a short document that provides basic answers to questions provided by ICE. It includes the documents US ICE requests (usually the I-9s and payroll records, at a minimum) and information in segments spanning data about

  • The company, location, ownership and number of W-2 employees.
  • Information about the type of work employees do.
  • How payroll is run.
  • Information about the HR Managers in charge of hiring and I-9s.
  • The method of I-9 preparation by company and employee, in detail.
  • Generation and storage of I-9s, including security, indexing and self-audits.
  • Use of government databases.

WHAT HAPPENS STARTING WITH THE VISIT FROM ICE AND AFTERWARDS

Essentially ICE visits the premises of an employer and begins what is a series of visits to ensure that the company is not employing workers who are not authorized to work. The series of steps generally flows like this, and we discuss what happens to the employees who are lost in the process because they realize they cannot comply with the requests for valid work authorization.

I-9 Check by ICE & Process with a Round of Reverifications                                                            

  1. ICE walks onto employer’s premises and hands a Notice to the Employer asking for I-9s
  1. Employer asks for 3 business days or is told he has longer; ASAP checks that he has I-9s for all workers, against his payroll list
  1. Hands documents to ICE in 3 days (I-9s and payroll)
  1. In 2-4 months, ICE sends another letter with non-matching names, gives the company __ days to respond; ICE requests more data – options include:
    1. 3 years of payroll records
    2. Financials
    3. W-2s & 1099s
    4. SS No Match letters, if any
    5. No evidence they request proof of good faith but it’s implicit; so add I-9 procedure details if it helps
  1. Company drafts and gives a letter to employees stating the need for Reverifications.
  • First wave of employees leaves because they know the company is under investigation
  1. Company re-verifies certain employees; ie, does new I-9s.
  • Second wave of employees leave. Unknown why they hung in there (need money badly; figured they have really good documents)
  • Some employees who can, may sue the employer for discrimination
  • Some employees, even illegals ask for unpaid vacation
  1. Company provides letters, new list of employee to ICE & new I-9s and a new payroll record. (depends on the request if all this is needed).
  1. Apx __ months later, ICE provides a request for an update on S, T, U, V, W, X, Y, Z employees. Company has __ days to provide info about these employees who did not check out.
  1. Company gives a second letter to Employees S-through-Z.
  • Third wave of employees leave.
  1. ICE returns to check I-9 records compliance sometime afterwards. Sometimes.

Ideal Method of I-9 Preparation / Reviewing Documents

The method of I-9 preparation for your company should be the following:

  • Employees get a packet when they are extended an offer. They have an online link to Section 1 (and the acceptable work and identity authorization documents), or a paper I-9 in the Offer Packet (or a link to eVerify).
  • Employee fills in Section 1 before the first day of employment (or completes this by the end of the 3rd day of employment).
  • HR reviews the original documents proving identity or work authorization; and records the documents that the employee physically demonstrates (hands over or shows on-screen through an authorized agent or authorized webcam portal) to HR.
  • HR should get all information for Section 2 to fill it in with the employee before signing, before the end of the 3rd day of employment.

Termination Procedures

Don’t forget to terminate employees in a timely manner and immediately move their Form I-9 to a Terminated Folder.  Their I-9 should stay accessible (not be discarded) for the later of (a) one year past their termination date or (b) 3 years from the date of hire, ie, if they worked for you less than 2 years. 

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