How-to guide: How to prepare for a US Immigration and Customs Enforcement I-9 audit (USA)

Introduction

This guide will assist in-house counsel, private practice lawyers, and human resource professionals with preparing for an audit of employees’ I-9 forms by US Immigration and Customs Enforcement (ICE).

This guide covers:

Overview of form I-9
Preparing for an audit
Follow-up to an audit

For further information, see How-to guide: Overview of US employment law and Checklist: Obtaining EB-1 visas for priority workers and persons of extraordinary ability.

Section 1 – Overview of form I-9

Form I-9 is a US Employment Eligibility Verification form.

1.1 Immigration Reform and Control Act of 1986

The Immigration Reform and Control Act of 1986 amended the immigration law of the United States to make it illegal for employers to knowingly employ someone who cannot legally work in the United States. Employers must verify the status of all employees, whether born in the United States, or naturalized or permitted to work in the country (8 CFR 274a.2). The verification is recorded on form I-9.

Note that US immigration law, including the eligibility of non-citizens to work in the United States, is entirely a matter of federal law. States may not make their own separate rules regarding the employment of non-citizens, except for certain governmental positions.

Employers should note that the Trump Administration is intensifying immigration enforcement, likely leading to more workplace audits and raids by US Immigration and Customs Enforcement (ICE). Recent executive orders have expanded the authority of federal agencies to arrest and detain undocumented individuals and individuals suspected of being undocumented. This indicates a more aggressive stance towards immigration compliance. Businesses in critical infrastructure sectors, such as healthcare and transportation, along with hospitality, construction, and agriculture, which have often relied on employing many immigrant workers, are particularly affected by this new emphasis.

In this new legal and administrative environment, it is crucial that employers review their hiring practices, ensure accurate completion of employment verification documents for all employees, and develop comprehensive response plans for potential interactions with ICE. Proactive compliance and preparedness are essential.

1.2 Employer obligations

To comply with employee verification requirements at 8 CFR 274a.2, an employer must complete and retain the relevant sections of Form I-9 (in either printed or electronic form) and certify the right of the employee to work in the country by inspecting necessary documents presented by the employee and logging those on the I-9 form. The Form I-9 was last updated on January 20, 2025, with minor changes to align with statutory language

An employer should complete only those sections of the forms that are required to be completed by the employer. There are serious consequences for an employee if the incorrect selections are made on the form, and the employer must be prepared to accept the liability of those consequences if they complete the forms on behalf of the employee (eg, by selecting that the employee is a US citizen when they are not).

1.3 I-9 form

The employee, by their first day of work, must fill out and sign section 1 of the I-9 form, providing all necessary biographic and legal information on that form. The employee must then present to the employer (or recruiter) documentation that establishes that the employee is authorized to work in the United States. The required documents are listed on the I-9 form. The employer fills out section 2 of the form, attesting under penalty of perjury that the employer has examined the documents and evidence regarding the employee’s right to work.

Employers must inspect the required documents in person.

1.4 Penalties for non-compliance

Any person (both employee and employer) who fails to comply with the verification requirements may face criminal or civil penalties. Engaging in a pattern or practice of violations may result in monetary fines for each unauthorized alien worker. In addition, the violator may face prison time. The amount of these fines is increased for repeated or subsequent offenses (8 CFR 247a.10).

If the Department of Justice determines that a pattern of abuse exists, other remedies may be imposed, including civil actions in federal district court against the entity at fault.

Section 2 – Preparing for an audit

There are a number of situations that might trigger an I-9 audit. Employers should ensure that they are ready for an audit at any time, by ensuring that robust processes are in place for compliance with I-9 requirements.

2.1 Pre-audit procedures

There are a number of steps employers should take in order to ensure they are prepared for an I-9 audit.

2.1.1 Compliance

Employers must complete section 2 of the I-9 within three business days of hiring the employee. Section 2 requires the employer to certify under penalty of perjury that the employee has properly filled out and signed section 1 of the document, and that the employer has reviewed the documents presented by the employee establishing their right to work in the United States. The employer must also list the specific documents reviewed.

The employer must retain the completed I-9 form, either in paper form or electronically. All documents must be legible and securely stored. Any document stored electronically must be in a form that does not restrict its use by government agents. There is no requirement that the I-9 be filed with any governmental agency, unless the document is requested.

2.1.2 Periodic review

It is best practice for the employer to conduct a periodic review of the I-9 forms it holds. This can be a complete review, or a spot-check review, to ensure that records are up to date. The review should also ensure that authorizations or visas have not expired. It also is best practice for employers to keep some type of spreadsheet or database that keeps track of when documents such as visas expire, to provide sufficient time to request updates or extensions of those documents. Likewise, the US government periodically revises and updates its forms. When reviewing forms, employers should use the newest I-9 form when and if updates are necessary (eg, on expiration and renewal of previous work authorization).

2.2 When audits are conducted

The situations that might trigger an I-9 audit are set out below.

2.2.1 Complaints

Employers must present all I-9 forms to any agency of the US government upon request. Any person or entity who has knowledge of a violation of I-9 form requirements or storage requirements is authorized to make a complaint to the United States Citizenship and Immigration Service (USCIS). This might include current or former employees, unsuccessful job applicants, or business rivals.

Note

An employee who makes a report of possible violations of I-9 requirements may be protected from retaliation by whistleblower protection rules and laws. For further information, see How-to guide: How to develop a whistleblower policy and reporting program .

2.2.2 Department of Homeland Security review

Inspections by the Department of Homeland Security (DHS) or the Immigration and Naturalization Service are not always prompted by specific allegations. Some inspections are prompted by open- or closed-source data collected by federal agencies that detect certain ‘hotspots’ that the agencies feel merit further scrutiny (8 CFR.274a.9).

Statistics show that unauthorized immigrants in the United States tend to work in the agricultural and services industries, especially in food service. See the New American Economy website page on Undocumented Immigrants. Employers in those industries should pay close attention to I-9 compliance.

2.2.3 Informants

Most federal law enforcement agencies maintain a series of confidential informants who guide agents toward potential wrongdoing. Likewise, alleged co-conspirators sometimes will name businesses engaged in wrongdoing to try to minimize their own legal exposure. Information provided by such individuals sometimes will prompt an I-9 audit.

2.2.4 Other law enforcement

Law enforcement and intelligence agencies sometimes share information. Local, state, and federal law enforcement agencies engaged in unrelated investigations sometimes will provide information uncovered during those operations to DHS or ICE, which then lead to an I-9 audit.

Note that ‘sanctuary city’ ordinances in some cities (eg, Chicago, Los Angeles, New York) prohibit local law enforcement from cooperating with ICE. The Center for Immigration Studies has published information on the level of regulations in each sanctuary city.

2.3 Audits and raids

2.3.1 Audits

An ICE, or I-9, audit involves agency inspection of an employer's employment verification documents, such as Form I-9 and E-Verify, to ensure the employer’s compliance with immigration laws and regulations.

ICE audits typically begin with a Notice of Inspection. During the audit, ICE will request Form I-9s for current and recently terminated employees and may also ask for a list of employees, wage reports, payroll records, E-Verify confirmations, and other business information.

Employers should immediately contact immigration counsel and share a copy of the Notice of Inspection. For further information about the process of an audit see 2.4 below.

Employers should consider conducting an internal audit of all Form I-9s. The audit should be explained to all employees, and they should be informed in writing of the scope and reason for the audit. Ensure Form I-9s are completed for all active employees. Any errors or misstatements should be corrected promptly, and the forms should be retained for the mandatory period for terminated employees (according to regulations, employers must retain a Form I-9 for each person hired for three years after their hire date or for one year after employment ends, whichever is later).

To mitigate penalties, Form I-9s should be reviewed and corrected as necessary before receiving a Notice of Inspection. Review employee personnel, Form I-9, and other immigration files to ensure they are organized in folders with only relevant documents, keeping I-9 records separate from personnel files. Employers using E-Verify, the government’s online system that allows enrolled employers to confirm the eligibility of their employees to work in the United States, should audit E-Verify cases to ensure compliance, submit cases for employees for whom an E-Verify case was not created at the time of hire (if the employer was enrolled at that time), and ensure the mandatory E-Verify poster is displayed at all worksites. Stay updated on form changes and requirements, and train Human Resources employees on how to properly complete and retain Form I-9s.

2.3.2 ICE raids

An ICE raid occurs when ICE has probable cause to believe immigration violations are happening. These raids usually involve a search warrant and a demand for immediate access to the employer's premises and records, with the goal of detaining undocumented individuals working for US employers.

ICE agents may enter public areas of a business without a warrant. However, to access private areas, they must have a signed judicial search warrant or the employer's consent. A judicial warrant authorizes arrests, seizures, or searches. Administrative warrants, appearing on Form I-200 or I-205, do not allow entry into private areas without consent and can be signed by an immigration judge or officer.

Public areas include spaces like a lobby, waiting area, or parking lot, while private areas are off-limits without a warrant. In a healthcare facility, for example, private areas include examination rooms and offices. Employees should know which areas are accessible without a warrant to prevent unintentional consent. It is useful to have a written policy designating areas closed to the public and consider whether sensitive information is visible from public areas.

Employers facing an ICE raid should request to see the warrant immediately, ensure it is signed by a judge and lists the correct legal name and address of the organization. Review the warrant’s scope, contact legal counsel, and send a copy of the warrant. Have a designated employee accompany the ICE agent(s) during the raid and record their names and contact information. Document all areas searched and make an inventory of items seized. If possible, photograph or video record the raid. Ensure security cameras are recording and make backup copies of footage, storing the footage on a secure server. Take detailed notes throughout the process. Do not physically obstruct the search, hide employees, destroy documents, or provide false information. Remind employees of their right to remain silent and to consult with legal counsel. Maintain a list of employees present, record searched areas, and document interactions with agents. Keep copies of all documentation and obtain receipts for any documents taken by ICE.

Employers can designate a primary point of contact for ICE raids and establish protocols and training for designated representatives. Create a detailed plan outlining roles and procedures for different ICE visits, accessible to relevant staff, especially front desk personnel. Conduct regular internal audits of Form I-9s and ensure proper documentation. Train staff to differentiate between public and private areas of the workplace.

2.4 The I-9 audit

When an I-9 audit does occur, it will involve the stages listed below.

2.4.1 Notice of inspection

An employer or other entity (such as an employment agency) that is required to retain I-9 forms will have at least three business days’ notice of inspection prior to being required to provide documents to inspectors (8 CFR 274a.2(b)(4)). The employer who holds the I-9 forms is not required to let DHS or ICE agents on the premises without a warrant but must present the forms upon the delivery of a properly issued subpoena.

2.4.2 Inspection

It often is easiest and most convenient to negotiate a time or place to present the requested documents to federal agents, whether it is at an attorney’s office or at the field office of the requesting agency, or other such place.

2.4.3 Violations

Federal inspectors distinguish between technical violations and non-technical (or substantive) violations. See ICE Form I-9 Inspection Fact Sheet. Technical violations are when the employer makes an error in filling out the form, such as a spelling error. Employers are allowed at least 10 business days to correct such errors or face penalties. A substantive violation is when an employer knowingly hires a person not authorized to work in the United States. Employers who engage in substantive violations must cease such violations and may be civilly fined or criminally prosecuted.

ICE will inform the employer of the audit results and may issue one of the following notices: Notice of Inspection Results, Notice of Suspect Documents, Notice of Discrepancies, Notice of Technical or Procedural Failures, Warning Notice, or Notice of Intent to Fine.

An employer who has made either a technical or a substantive violation may be served with a Notice of Intent to Fine (8 CFR 247a.9(d)). An employer who receives such a notice has 45 days to determine whether they wish to pay the fine or request a hearing before an administrative law judge (ALJ).

The monetary amount of any potential penalties varies based on a number of criteria, including the size of the business charged, the good faith of the employer, the seriousness of the offense, and the history of previous violations (8 CFR 247a.10(b)(2)). It often is in the best interests of the employer to request a hearing before an ALJ or to attempt to negotiate the value of any potential fines or penalties.

Section 3 – Follow-up to audit

Following an I-9 audit employers should consider whether any action is required.

3.1 Violations identified

If violations were identified during the audit, employer action may be necessary.

3.1.1 Correct violations

It is in the employer’s best interests to correct any faulty records as soon as possible and to terminate the employment of any unauthorized workers. In the event that an unauthorized worker is crucial to the employer’s operation, it may be possible to change that employee’s status. The employer should seek legal counsel if attempting to change an employee’s status.

3.1.2 Additional remedial steps

It is best practice for employers to step back and review their human resources intake and record-keeping procedures in the aftermath of a I-9 audit. This is especially true if that audit reveals significant problems in how the I-9 process is managed.

3.2 Self-inspection

Whether in the aftermath of an I-9 audit or not, every employer should make it a point to have periodic self-inspection of all I-9 records to ensure they are compliant. The U.S. Customs and Immigration Services (USCIS) has provided Self-Audits and Correcting Mistakes that can be used as a resource to assist businesses in this process. In addition, the USCIS has issued Guidance for Employers Conducting Form I-9 Audits for organizations that might want to perform a self-audit either before a formal audit, or to evaluate their remedial actions subsequent to an audit.

Additional resources

US Citizenship and Immigration Services – Handbook for Employers
US Immigration and Customs Enforcement – Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits

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US Immigration and Customs Enforcement