1. What Does I-9 Compliance Require from Employers?
Federal I-9 compliance involves more than having a completed form in each personnel file. Employers must complete the correct sections on time, examine acceptable documents properly, reverify only when required, and retain Forms I-9 for the applicable period.
| Compliance Issue | Employer Action | Risk if Missed |
|---|---|---|
| New hire | Complete Sections 1 and 2 on time | Paperwork violation |
| Expiring work authorization | Determine whether reverification is required | Continued-employment issue |
| Remote verification | Follow an authorized DHS procedure | Defective verification |
| Existing I-9 error | Correct transparently without backdating | Audit exposure |
| ICE Notice of Inspection | Preserve and review requested records | Enforcement risk |
| Employee documents | Allow the employee to choose acceptable documents | Anti-discrimination risk |
New hire
- Employer ActionComplete Sections 1 and 2 on time
- Risk if MissedPaperwork violation
Expiring work authorization
- Employer ActionDetermine whether reverification is required
- Risk if MissedContinued-employment issue
Remote verification
- Employer ActionFollow an authorized DHS procedure
- Risk if MissedDefective verification
Existing I-9 error
- Employer ActionCorrect transparently without backdating
- Risk if MissedAudit exposure
ICE Notice of Inspection
- Employer ActionPreserve and review requested records
- Risk if MissedEnforcement risk
Employee documents
- Employer ActionAllow the employee to choose acceptable documents
- Risk if MissedAnti-discrimination risk
Completing Sections 1 and 2 on Time
An employee generally must complete and sign Section 1 no later than the first day of employment for pay, but not before accepting the job offer.
The employer or its authorized representative generally must complete Section 2 within three business days after the employee starts work.
If the employee will work for fewer than three business days, Section 2 generally must be completed no later than the first day of employment.
The employee chooses which acceptable documents to present. The employer may accept one valid List A document or an appropriate combination of one List B and one List C document.
An employer should not demand a green card, passport, Employment Authorization Document, or another particular document merely because it appears more convenient for verification.
Reverification and Rehire
Supplement B is used for qualifying reverification and certain rehire situations.
Reverification generally focuses on temporary employment authorization that is expiring. Employers should not automatically reverify documents simply because the document itself has an expiration date.
For example, lawful permanent residents generally should not be reverified merely because a Permanent Resident Card expires, and List B identity documents are not ordinarily reverified.
Employers must check whether a particular employee's work authorization qualifies for an automatic extension before deciding when reverification is required.
For many EAD renewal applications filed on or after October 30, 2025, the previous automatic-extension rule no longer applies. Earlier qualifying extensions and certain extensions provided by statute or Federal Register notice may remain valid.
An employer should verify the employee's authorization category, renewal filing date, documentation, and current USCIS guidance before treating employment authorization as expired.
Retaining Form I-9 Records
An employer generally must retain Form I-9 until the later of:
Three years after the date of hire; or
One year after employment ends.
A centralized retention system can make an ICE inspection easier to manage, particularly for employers with multiple locations or electronic I-9 systems.
Electronic systems should preserve required audit trails, accessibility, security, and the ability to produce readable records during an inspection.
2. What Changed for I-9 Compliance in 2026?
The current I-9 landscape involves both an updated Form I-9 edition and changes in ICE inspection guidance.
Employers should distinguish the newest form from older versions that remain acceptable and should not assume that defects historically treated as correctable will receive the same treatment in a current inspection.
Current Form I-9 Editions
The latest Form I-9 edition is dated January 20, 2025 and displays an expiration date of May 31, 2027.
Employers may also use the August 1, 2023 edition that displays the same May 31, 2027 expiration date.
The older August 1, 2023 version displaying a July 31, 2026 expiration date is no longer valid for new verification.
Employers using electronic I-9 systems should confirm that their software uses an accepted version and preserves the required electronic records and audit trail.
A change in the form version does not mean employers should recreate properly completed Forms I-9 for existing employees solely to place them on the newest edition.
Increased Risk from Substantive Form Errors
ICE's March 2026 inspection guidance changed how several Form I-9 defects are classified.
Errors such as missing employee signature dates, incomplete Section 2 document information, and certain employer-attestation defects may be treated as substantive violations rather than correctable technical or procedural failures.
That distinction can affect whether an employer receives a post-inspection opportunity to correct the error before a civil penalty is assessed.
Employers should classify each defect under current inspection guidance rather than assume that every omission can be corrected within 10 business days.
The guidance affects ICE's inspection and enforcement analysis. Whether a particular alleged violation is legally supportable still depends on the form, facts, governing law, and applicable administrative procedures.
Remote Document Examination
Remote work does not give every employer permission to examine I-9 documents by video.
DHS's alternative document-examination procedure is available to qualifying employers participating in E-Verify in good standing at the hiring sites using the procedure.
The procedure generally requires the employer to:
Obtain and examine copies of the documents;
Conduct a live video interaction with the employee;
Compare the documents shown during the video session with the copies received;
Retain clear and legible copies of the documents;
Indicate on Form I-9 that an alternative procedure was used.
An eligible employer must apply the alternative procedure consistently at each participating E-Verify hiring site.
The employer may use remote examination for remote hires while continuing physical examination for onsite or hybrid employees, provided that the distinction is applied consistently and is not based on citizenship, immigration status, national origin, or another discriminatory purpose.
The alternative procedure is therefore a defined compliance process rather than general permission to perform I-9 verification through Zoom or another video platform.
3. How Employers Can Find and Correct I-9 Problems
An internal audit can identify missing forms, late completion, improper reverification, and electronic-record problems before those defects appear in an ICE inspection.
The audit should apply a consistent workforce-based methodology rather than selecting employees because of citizenship, immigration status, national origin, or perceived foreign status.
Conducting an Internal I-9 Audit
An internal audit may examine:
Whether a Form I-9 exists for each covered employee;
Whether Sections 1 and 2 were completed on time;
Missing signatures or dates;
Incomplete document information;
Improper reverification;
Temporary employment authorization requiring action;
Remote-examination records;
Electronic-system audit trails;
Retention and destruction practices.
For multi-location employers, the audit should compare hiring practices across locations. Different HR teams can use inconsistent document requests, outdated workflows, or different reverification practices.
Broader immigration compliance issues may also arise when I-9 practices intersect with visa status, employment-authorization extensions, corporate restructuring, or workforce changes.
Correcting Errors without Backdating Forms
Corrections should preserve the original audit trail.
An employer should not recreate an old Form I-9 to make it appear that the form was timely completed when it was not.
Depending on the error, an appropriate correction can involve:
Preserving the original entry;
Entering the correct information;
Identifying the person making the correction;
Dating the correction accurately;
Adding an explanatory memorandum when appropriate.
Section 1 errors ordinarily should be corrected by the employee or, when applicable, the preparer or translator. Employer-side errors should be corrected by the employer or authorized representative.
A late correction does not erase the original violation, but the record should accurately show what the employer discovered and what it did afterward.
Avoiding over-Documentation
Employers can create separate legal exposure by requiring particular documents from non-U.S. .itizens, demanding more documentation than Form I-9 requires, or rejecting documents that reasonably appear genuine and relate to the employee.
Employees generally have the right to choose which acceptable documents to present.
An internal audit should therefore examine both Form I-9 defects and whether the company's verification practices created unfair documentary practices based on citizenship status or national origin.
4. What Happens during an ICE I-9 Audit?
ICE and Homeland Security Investigations continue to use Form I-9 inspections as an employer-compliance and worksite-enforcement tool.
The process commonly begins with a Notice of Inspection, followed by production of Forms I-9 and related records and a determination of whether the employer has paperwork, substantive, or employment-authorization issues.
Notice of Inspection and Document Production
An NOI generally gives an employer at least three business days to produce requested Forms I-9.
ICE may also request materials such as:
Current and former employee lists;
Payroll records;
Business or organizational records;
Electronic I-9 audit trails;
Supporting records identified in the NOI or subpoena.
The HSI I-9 Portal allows employers served with an NOI or subpoena to submit Forms I-9, audit trails, and requested supporting documentation electronically.
After receiving an NOI, the company should preserve the records as they existed, identify potential defects, and document any lawful correction carefully rather than making unexplained changes across the I-9 population.
Technical, Substantive, and Employment Authorization Issues
An ICE inspection can result in several different notices involving compliance, discrepancies, suspect documents, technical failures, substantive violations, or possible employment-authorization problems.
Qualifying technical or procedural failures can receive a 10-business-day correction opportunity. An uncorrected technical failure can become a substantive violation.
Errors classified as substantive under current ICE guidance do not receive that same ordinary technical-error cure process.
ICE's August 2026 guidance also identifies a Notice of Expired or Rescinded Immigration Status and/or Employment Authorization.
That notice alerts an employer to affected workers but does not itself establish employer wrongdoing. The employer must determine the employee's current work authorization and the verification or employment actions required by the facts.
A paperwork violation also remains legally distinct from knowingly hiring or continuing to employ an unauthorized worker. An incomplete Form I-9 does not by itself establish a knowing-employment violation.
Responding to a Notice of Intent to Fine
A Notice of Intent to Fine identifies alleged violations and the proposed civil penalties.
An employer can evaluate settlement or request a hearing before the Office of the Chief Administrative Hearing Officer.
An employer requesting an OCAHO hearing must ensure that ICE receives the written request within 30 calendar days after the employer receives the Notice of Intent to Fine. Mailing the request within that period is not necessarily sufficient.
If the employer does not timely respond, ICE can issue a final order.
The response should separately evaluate each alleged paperwork violation, substantive defect, uncorrected technical violation, and any knowing-hire or continuing-employment allegation.
5. Penalties and Other Risks from I-9 Noncompliance
I-9 exposure depends on the type of violation.
Paperwork violations, knowing-employment allegations, discriminatory documentary practices, and systemic compliance failures involve different legal standards and should not be combined into one penalty theory.
Missing or Defective Forms
The applicable 2025 inflation-adjusted range for covered I-9 paperwork violations is $288 to $2,861 per violation.
The annual Federal civil-penalty inflation adjustment for 2026 was canceled, so employers should continue to check the existing applicable penalty schedule together with the assessment date and violation category.
The actual fine can depend on factors including the number and seriousness of violations, employer size, good faith, involvement of unauthorized workers, and prior history.
A company therefore should not assume that every missing field results in the same fine or multiply all I-9 defects by one maximum amount.
Knowingly Hiring or Continuing to Employ Unauthorized Workers
Knowing-hire and continuing-employment violations are separate from Form I-9 paperwork violations and carry their own civil penalty framework.
The analysis can involve the employee's actual employment authorization, what the employer knew, information received during employment, prior violations, and the employer's response.
A defective Form I-9 does not automatically establish that the employer knowingly employed an unauthorized worker.
Discrimination Risks during Verification
Federal verification rules also interact with the INA's anti-discrimination provisions.
Employers should not treat employees differently because of citizenship status or national origin by:
Requiring a specific immigration document;
Demanding extra documents from workers perceived as foreign;
Rejecting documents that reasonably appear genuine and relate to the employee;
Applying unnecessary reverification to selected groups.
These risks should be incorporated into broader workplace compliance procedures when a business standardizes hiring or verification practices across multiple locations.
6. Frequently Asked Questions
Does every employer have to use E-Verify?
No. Form I-9 and E-Verify are separate compliance systems. Federal contractor obligations, state law, voluntary enrollment, or another applicable requirement can determine whether a particular employer must use E-Verify.
Can an employer fix an old I-9 after discovering an error?
Some errors can be corrected transparently. The employer should preserve the original information, avoid backdating, and use a correction method appropriate to the type of defect and the stage of any ICE inspection.
Do employers need to keep copies of employees' I-9 documents?
Employers are not generally required to retain copies of every employee document in every I-9 case. Different rules apply when an employer uses DHS's authorized remote alternative procedure, and E-Verify participation can create additional document-copy requirements in specified situations.
7. Strengthen I-9 Compliance before an Inspection
Employers that discover recurring Section 2 errors, incomplete electronic audit trails, improper reverification, or unsupported remote-verification practices may need to correct their procedures before those problems become part of an ICE inspection.
An I-9 compliance attorney can assess the affected workforce records, identify substantive violations under current inspection guidance, and establish a correction process that preserves the original audit trail.
After a Notice of Inspection or Notice of Intent to Fine, the review can focus on document preservation and production, defect classification, penalty exposure, employment-authorization issues, and the deadlines for responding or requesting an OCAHO hearing.
08 Oct, 2026
