Is Your Business I-9 Compliant?

Home Depot. Hotels. Farms. Construction sites. What do these places have in common? All have been sites of U.S. Immigration and Customs Enforcement (ICE) raids.

The number of inspections, raids, and arrests may differ depending on the source, but one thing is clear: enforcement is up—way up—compared to previous years. Stephen Miller, The White House Chief of Staff, has confirmed this by stating in a Fox News interview that ICE's goal is to arrest 3000 people per day. That means businesses across the country face greater scrutiny and legal risk than ever before.

ICE Philadelphia and law enforcement partners execute worksite enforcement operation at Wyoming Valley Pallets Inc.

Under the Immigration Reform and Control Act (IRCA), enacted on November 6, 1986, all U.S. employers must verify both the identity and employment eligibility of every individual hired after that date. This is done using the Employment Eligibility Verification Form, more commonly known as Form I-9.

According to ICE.gov, Form I-9 must be completed for each new hire. Employers must verify original documents, with the exception of birth certificates that can be a certified copy, proving the employee’s identity and authorization to work in the U.S. These forms can be stored on paper or electronically—but they must be readable and printable on demand and updated when information expires or changes.

Retention rules are strict:

• For current employees, I-9s must be on file and available for inspection.

• For former employees, I-9s must be retained for at least 3 years after the hire date or 1 year after employment ends, whichever is later.

Even companies that think they’re compliant may not be. A quick Google search reveals shocking statistics:

• U.S. Citizenship and Immigration Services (USCIS) reports that 76% of paper I-9s have at least one error or omission.

• Jackson Lewis, an industry expert, estimates 60–80% of paper I-9s are missing, incomplete, or flawed.

Common I-9 errors include:

• Using the wrong, expired version of the I-9 for a current employee.

• Missing or incorrect information in Section 1 (employee details), such as partial names, unchecked immigration status, or missing Social Security numbers when using E-Verify.

• Mistakes in Section 2 (employer verification), like accepting expired or invalid documents or selecting the wrong combinations from Lists A, B, and C.

• Failure to meet completion deadlines: Section 1 must be done by the end of the first workday, and Section 2 within three business days of the start date.

• Missing signatures or dates.

• Using correction fluid (please no White-Out!). Edits need to be done in specific ways by specifically the employee or the employer, depending on the section.

• Telling employees which documents to present (not allowed). Employees must choose from the accepted lists.

• Accepting photocopies instead of original documents, except for certified copies of birth certificates.

Noncompliance can lead to steep civil fines—and in some cases, criminal penalties. According to this article: https://bit.ly/I-9Violations from Foley and Lardner LLP, fines for I-9 violations can range from $289-$2,789 per violation, not per incorrect form. And claiming ignorance won’t give you a pass. The form I-9 isn’t optional. It’s like playing hide-and-seek with the federal government. Spoiler: they’re very good at seeking—and they’re actively on a mission to find — illegal immigrants.

Take this case reported from Fisher Phillips:

Buffalo Transportation Co. v. United States. This company provides rides for patients heading to medical appointments. It failed to fill out I-9s at the time of hire for any of its 54 employees. While it had copies of employee IDs, it didn’t complete the required forms.

After receiving an I-9 audit notice from ICE, the company scrambled to complete the forms. But it was too late. ICE fined them $109,000. The company appealed, and an Administrative Law Judge (ALJ) agreed with the violations but reduced the fine to $75,000, considering the company’s size and lack of bad intent.

Still not satisfied, the company brought the case to the 2nd Circuit Court of Appeals, arguing it had made only technical errors, not substantive ones—a distinction that once allowed employers to avoid fines if acting in good faith.

Unfortunately, ICE had since eliminated that distinction in its rules. The court ruled that the failure to complete I-9s on time was a substantive violation, citing 1997 INS guidance. In short, missing deadlines wasn’t a typo—it undermined the law’s intent and therefore wasn’t excusable.

I-9 Penalties per Civil Monetary Penalties Inflation Adjustments for 2024

The lesson? Keeping copies of IDs is not enough. Timing, accuracy, and keeping information current are what matters.

Bottom line: Now more than ever, non-compliant companies are at RISK, and self-auditing Form I-9s is critical. Penalties are real, and even small errors can snowball. Regular audits help avoid unnecessary risks and ensure businesses are prepared when ICE comes knocking.

Need help? Reviewing I-9s is second nature here, and an extra set of trained eyes can make all the difference.