Why recent I-9 changes mean the stakes are higher for employers

Form I‑9 compliance has always been a core HR responsibility, but recent enforcement and policy changes mean the margin for error is shrinking. With U.S. Immigration and Customs Enforcement (ICE) increasing worksite enforcement and quietly updating how I‑9 violations are classified, employers face greater risk from mistakes that were once considered correctable paperwork errors.

Here’s what HR teams need to know about managing the Form I-9 process, maintaining compliance and preparing for potential government audits.

What are employers responsible for regarding the Form I-9?

Employers are required by law to use the Form I-9 to verify that all employees hired after Nov. 6, 1986, are authorized to work in the United States. Companies must maintain I-9 forms for all current employees as well as former employees for at least three years from the first day of employment or one year from the date employment ended, whichever is longer.

It’s important to emphasize that the Form I-9 is required for every single employee, not just foreign national employees. HR teams can work with in-house counsel, mobility managers or immigration vendors to track and reverify work authorization as needed.

What is a Form I-9 audit? 

A Form I‑9 audit is a government inspection of an employer’s employment eligibility verification records. ICE, through its Homeland Security Investigations (HSI) division, has authority to inspect Forms I‑9 and related records for compliance with the Immigration Reform and Control Act.

An audit begins when ICE issues a Notice of Inspection (NOI).

The NOI generally includes:

• The time and date the agency expects to conduct the inspection

• Contact information for the ICE agent who is in charge of the inspection

• Which documents will be inspected

• Deadline by which the employer must respond to the NOI

HSI typically requests that the employer provide supporting documentation, which may include but is not limited to: a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation and business licenses. In addition, if the employer completes the Form I-9 using an electronic system, the government may ask for audit trails and other information about the system to evaluate compliance. Employers generally have three business days to produce the I-9 forms and supporting documents requested in the NOI.

What happens if HSI finds an error during an I-9 audit?

During the Form I-9 audit, HSI will be looking for both technical and substantive violations. Technical violations are typically procedural errors that can be corrected by the employer within 10 business days of the violation being reported by HSI. For substantive violations the government identifies during an inspection, the employer does not receive an opportunity to correct, which means they generally result in civil penalties.

Here’s where recent changes make a significant difference.

ICE updated its public guidance on Form I‑9 inspections — its first update on violation classification in more than 15 years — and reclassified multiple violations that were previously considered technical as substantive. In short, mistakes that once could be fixed when they are identified during an inspection may now result in immediate fines.

How can employers reduce the risk of penalties from I-9 audits?

Given the increasing stakes, employers should consider:

• Reviewing and refreshing I‑9 policies, procedures and SOPs (including front desk and visitor protocols)
• Conducting proactive internal I‑9 audits to assess risk
• Implementing quality control and second review processes
• Training all personnel involved in employment eligibility verification
• Confirming the ability to retrieve and produce Forms I‑9 within 72 hours, especially when using electronic systems

Stay compliant with BAL 

I‑9 compliance has always mattered, but with more violations labeled as substantive and fewer opportunities to correct errors, employers should assume that even minor mistakes may carry outsized risk.

Whether your organization wants to conduct an internal Form I-9 audit as a precautionary measure, seeks day-to-day compliance support on complex I-9 issues or finds itself in the middle of an investigation, BAL is equipped and ready to help. Our legal experts are deeply knowledgeable about Form I-9 requirements and are experienced in navigating changes in policy and government enforcement trends. We have an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as manage complex matters such as I-9 audits and investigations.

Contact our team of legal experts to discuss how we can help ensure compliance and a fair investigation.