Worksite immigration enforcement is increasing, and employers are facing renewed scrutiny over their Form I-9 compliance practices. While I-9 completion may seem like a routine onboarding task, the requirements are technical, highly regulated, and increasingly important in today’s enforcement environment.
In Part 1 of this Statutes of Liberty podcast episode in our compliance series, Klasko Senior Associate Natalia Gouz is joined by Elise Fialkowski, Partner and Co-Chair of Klasko’s Corporate Immigration Practice Group and leader of the firm’s Worksite Enforcement Group, to discuss practical steps employers can take to strengthen their I-9 compliance programs and prepare for a potential government audit.
Why I-9 Compliance Is More Than Just Paperwork
Federal law requires U.S. employers to verify the identity and employment authorization of every employee hired in the United States. This process is completed through Form I-9, which requires the employee to complete Section 1 on or before the first day of employment and the employer to complete Section 2 no later than the third business day after the employee begins work.
Although the form itself may appear straightforward, compliance is far more complex. The Department of Homeland Security’s (DHS) handbook for completing Form I-9 spans more than 200 pages, which highlights how many technical requirements and potential pitfalls can arise during the process.
Employers must also balance two separate compliance obligations: satisfying I-9 requirements enforced by U.S. Immigration and Customs Enforcement (ICE) while avoiding discriminatory practices monitored by the U.S. Department of Justice Immigrant and Employee Rights (IER) Section. For example, asking an employee to bring a specific document, such as a passport or Social Security card, can create risk if it is viewed as document abuse or discriminatory treatment.
Avoiding Document Abuse and Overdocumentation
When verifying identity and work authorization, it is essential that employers do not request the specific documents that employees should provide for I-9 completion. Instead, employers should provide the employee with the official List of Acceptable Documents and allow the employee to choose which valid document or combination of documents to present.
Employees may provide either:
- A List A document, which establishes both identity and employment authorization, or
- A combination of a List B document (which establishes identity) and a List C document (which establishes employment authorization).
Employers should also be cautious about accepting and recording too many documents. While it may seem safer to collect more documentation, overdocumentation can create its own compliance risk. If an employee presents more documents than necessary, the employer should allow the employee to choose which document or document combination they would like to use.
Building a Strong I-9 Compliance Program
A strong I-9 compliance program starts with a clear, written policy. Employers should avoid relying on generic or overly brief policies that do not reflect the company’s actual practices. A meaningful I-9 policy should identify who is responsible for completing I-9s, outline the company’s process, and reflect procedures the employer is actually following.
This is especially important because, during a government audit, employers may be asked to produce not only I-9s and supporting documentation but also written policies and training materials.
Employers should also carefully consider who is completing I-9s and ensure they receive appropriate training. If any non-HR staff members are completing I-9s, their work should be subject to secondary review by someone with I-9 compliance experience. A second review can function like a mini-internal audit and help catch errors before they become larger compliance issues.
Training Should Be Ongoing, Not One-Time
I-9 training should not be treated as a one-time onboarding exercise for HR personnel. Changes in immigration policy, humanitarian programs, temporary protected status, employment authorization extensions, and federal litigation can all affect whether certain employees remain work authorized.
Because these issues can change quickly, employers should ensure that personnel responsible for I-9 completion and reverification have access to current guidance and experienced legal counsel when difficult questions arise. This is particularly important when employees present documents tied to temporary or changing immigration programs.
Employers are accustomed to conducting recurring anti-discrimination, anti-harassment, and other workplace compliance trainings. I-9 training should be treated with the same level of seriousness, particularly for employees who handle hiring, onboarding, document review, or reverification.
Correcting I-9 Errors the Right Way
Mistakes on I-9s can often be corrected, but employers must follow proper correction procedures. Corrections should be visible and should never involve white-out, erasing, or backdating. For paper I-9s, employers typically should draw a line through the incorrect information, enter the correction, and initial and date the change. For corrections made after the original completion date, it may also be helpful to attach a memo explaining the correction. Properly documented corrections can demonstrate good faith, which may be relevant in the event of a government audit.
Should Employers Keep Copies of Documents?
Whether to retain copies of employee identity and work authorization documents is a common question. If an employer uses E-Verify, certain document retention requirements apply. For employers not using E-Verify, federal law generally does not require copies of documents to be retained.
However, as discussed in the episode, retaining copies can provide important protection during an audit. If the government later questions whether an employee was work authorized, having copies of the documents reviewed at the time of hire can help show what the employer examined and why the employer determined the documents appeared reasonably genuine and related to the employee.
Employers who choose to retain copies should do so consistently and should copy both the front and back of documents when applicable.
Preparing for Increased I-9 Audit Risk
Recent government guidance is suggesting a more aggressive approach to classifying I-9 errors. Historically, employers relied on long-standing guidance distinguishing between technical errors, which could often be corrected without penalty, and substantive errors, which result in fines.
Recent updates appear to narrow the scope of technical errors and broaden the types of errors that may be treated as substantive. This shift could significantly increase potential fine exposure for employers, especially those with large volumes of I-9s or decentralized onboarding processes.
In this environment, employers should strongly consider conducting internal I-9 audits, updating written policies, refreshing training materials, and working with experienced immigration counsel to identify and correct compliance gaps before receiving a Notice of Inspection.
Key Takeaways for Employers
Employers should consider taking the following steps now:
- Review and update written I-9 policies to ensure they reflect actual practices.
- Train all personnel involved in I-9 completion, document review, and reverification.
- Use the List of Acceptable Documents rather than requesting specific documents.
- Avoid overdocumentation and allow employees to choose valid document combinations.
- Implement a secondary review process before I-9s are finalized.
- Correct errors properly and document corrections when appropriate.
- Consider conducting an internal I-9 audit with counsel.
- Monitor changing guidance related to work authorization, TPS, humanitarian parole, and other temporary programs.
As discussed in this part of the episode, I-9 compliance is not simply an administrative formality. It is a critical part of an employer’s broader worksite compliance strategy, particularly in a heightened enforcement environment.
Part 2 of this episode will continue the discussion by focusing on reverification obligations, electronic I-9 systems, E-Verify considerations, and practical steps employers can take to reduce liability if faced with an I-9 audit.
If you need assistance reviewing your company’s I-9 practices, conducting an internal audit, updating compliance policies, or preparing for a government inspection, please reach out to a member of Klasko’s Worksite Compliance Team or request a consultation.
Listen to the full episode to learn how your organization can prepare for today’s evolving enforcement landscape. Subscribe to Statutes of Liberty on Apple Podcasts, Spotify, Amazon Music, and JioSaavn.
The material contained in this post does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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