Federal law requires U.S. employers to verify the work authorization of all employees by completing Form I-9. This form must be filled out for each employee hired after November 6, 1986. Employers are responsible for ensuring that Form I-9 is completed accurately and retained for three years after hiring or one year after employment ends, whichever is later.
Employers must also keep Form I-9s accessible for inspection if requested and ensure that all information is clear, readable, and matches payroll records. Section 2 of the form should be completed by the third business day after an employee starts work, or immediately if the employment lasts less than three days. Supplement B (previously Section 3) must be completed before an employee’s work authorization expires.
U.S. Immigration and Customs Enforcement (ICE) enforces compliance with these requirements under the Immigration and Nationality Act. If ICE selects a business for inspection, it issues a Notice of Inspection (NOI), requiring employers to provide Form I-9s within three business days. Additional documents such as payroll records or business licenses may also be requested.
During an audit, ICE reviews forms for substantive violations as well as technical or procedural errors. Technical mistakes—such as using outdated forms, missing required information, or incomplete employer details—generally allow a ten-day correction period before escalating to substantive violations.
Substantive violations are more serious and can result in fines. Examples include lacking a Form I-9 for an employee, missing signatures or dates, failing to review work authorization documents, not completing required sections on time, or knowingly employing unauthorized workers.
After an audit, ICE may issue several types of notices:
- Compliance Letter: No further action required.
- Notice of Technical or Procedural Failures: Errors must be corrected within a specified timeframe.
- Notice of Suspect Documents: Questions about employee documentation.
- Notice of Discrepancies: Uncertainty regarding work authorization status.
- Warning Notice: Violations found but no fine imposed.
- Notice of Intent to Fine (NIF): Civil penalties may apply.
Employers who receive a NIF have 30 days to request a hearing with the Office of the Chief Administrative Hearing Officer; otherwise, ICE will issue a Final Order with no right to appeal.
Penalties vary based on the nature of violations. Paperwork infractions can result in fines from $288 up to $2,861 per violation; knowingly hiring unauthorized workers carries fines ranging from $716 to $28,619 per offense.
The National Federation of Independent Business (NFIB) Legal Center provides resources such as webinars on how small businesses should prepare for stricter immigration enforcement and guidance on complying with Form I-9 requirements and ICE inspections. Employers seeking assistance can contact NFIB Legal Center at (800) 552-NFIB or info@nfib.org.
