Immigration in Employment: How Employers Can Prepare for Investigations

By Cassie Alfheim

BLOG OVERVIEW: Employers are facing difficult challenges in order to ensure compliance with Form I-9 requirements. Complex record keeping requirements, the prevalence of remote work, increased enforcements, and the potential for large fines make compliance with these requirements critical for any organization.

As workplace compliance grows more complex, one area remains consistently high-risk for employers: employment eligibility verification and Form I-9 compliance.

It’s not just a box-checking exercise. Done poorly, it can lead to heavy financial penalties, reputational damage, and operational disruption. Done well, it can become part of your organization’s foundation for fair, compliant, and efficient hiring.

Here’s what employers need to know about the current landscape and how to prepare for an audit (also referred to as an “investigation”) before it’s too late.

Employers Face Immigration Challenges Now More Than Ever

Since the Immigration Reform and Control Act (IRCA) of 1986, employers have been required to verify the identity and work authorization of every employee using Form I-9. Over time, additional regulations, the introduction of E-Verify, and an increase in remote work have added layers of complexity.

Recent trends show:

• Immigration and Customs Enforcement (ICE) audits have increased across industries and geographical areas.
• Out of necessity during the COVID-19 pandemic, the Department of Homeland Security (DHS) provided employers some flexibility by permanently allowing for remote document inspections for new hires at employers enrolled in E-Verify.
• Employers contend with losing valued employees after ICE raids, the subsequent costs to replace them, and the resulting damage to workplace morale.

The stakes are high for employers who run afoul in ICE audits: civil fines can quickly escalate into the six, seven, and eight figures, and patterns of non-compliance can even trigger criminal charges for executives and other employer representatives. Check out the ICE newsroom site and filter on “Worksite Enforcement” for a staggering number of recent settlements, indictments, and coordinated investigations across multiple federal agencies involving employers who failed to comply with the requirements enforced by ICE.

Why Me?

There are many reasons an employer might be targeted for an ICE audit, but they often fall into the following buckets:

• Something in the employer’s I-9 data submitted through E-Verify piques the interest of DHS and/or ICE, leading them to investigate. DHS can also leverage E-Verify’s huge dataset to isolate certain geographical areas or industries that could be concentrated with errors.
• Complaints from current or previous employees, applicants, or even market competitors who suspect the employer is using illegal labor practices.
• Other government investigations or operations that implicate the employer’s workforce or labor practices (e.g., an Internal Revenue Service (IRS) investigation uncovers potential I-9 filing issues or tips from co-conspirators or confidential informants).

What Happens During an I-9 Audit?

At the onset of an I-9 audit, employers receive a Notice of Inspection (NOI), typically giving only three business days to produce I-9 records for current and former employees, based on retention requirements, and potentially other records related to employment eligibility. In practice, this includes records for the following:

• All currently active employees who were hired on or since November 6, 1986 (date IRCA was enacted).
• Former employees, following these record retention practices:
  • If they worked for less than two years, their form should be retained and made available for audit for three years after the date entered in the First Day of Employment field.
  • If they worked for more than two years, their form should be retained and made available for audit for one year after the date they stop working for you.

It is also important to note that various federal agencies may take part in I-9 audits, including:

• Department of Homeland Security
  • US Citizenship and Immigration Services (USCIS)
  • Immigration and Customs Enforcement
• Department of Justice (DOJ)
  • Immigrant and Employee Rights Section (IER)
• Department of Labor (DOL)
  • Wage and Hour Division (WHD)
  • Employment and Training Administration (ETA)

Failing to produce I-9s, identifying I-9 errors, uncovering fraudulent documentation, and delaying an inspection can result in additional penalties. ICE’s website has the following flow chart that demonstrates the various outcomes that can come from I-9 audits:

I-9 audits are not theoretical risks—they are a growing enforcement priority and reality. Proactive preparation is your best defense.

Common I-9 Pitfalls

With the rapidly changing international political climate in conjunction with constant change in the immigration and employment regulatory space, human resources (HR) and compliance teams often struggle with the following:

• Determining which documents are acceptable, especially with reverifications.
• Tracking document expirations for work-authorized non-citizens.
• Completing I-9s within the required timelines.
• Navigating post-pandemic hybrid and remote inspection rules.
• Navigating proper I-9 documentation as a part of a merger or acquisition.
• Correcting I-9 errors without increasing liability or triggering red flags.

These challenges aren’t about HR teams’ failures. They’re about the complexity and rapid change of the system—and the need for clear, practical processes.

Proactive Steps Employers Should Take

So, with the varying record retention requirements, ongoing expiration of authorizing documents, increased enforcement activity, among other challenges, what can employers do to proactively prepare for audits? Employers should consider the following:

1. Conduct Quarterly Internal I-9 Documentation Audits to Ensure:

• All active employees have completed I-9s.
• Terminated employees’ I-9s are properly retained.
• Sections 1 and 2 are complete, accurate, and signed on time.
• Errors are corrected using compliant methods (strike-through, correction, initials, dates) and documented thoroughly, including reasons for changes or why new forms were completed.

2. Leverage Technology

E-Verify plugins and I-9 tracking modules are on the market to connect with employers’ human resource information systems and applicant tracking systems. These tools typically:

• Track reverification dates.
• Flag missing or incomplete fields.
• Facilitate remote document inspection under current DHS guidance.

Regardless of employers’ implementation of these types of vendors and tools, employers retain the responsibility to properly collect, document, and retain all I-9 information. Employers should carefully vet vendors prior to engaging in services and on a routine basis thereafter to ensure compliance with the latest I-9 requirements.

3. Establish Clear Policies and Training

Include clear, written I-9 compliance and anti-discrimination policies in your employee handbooks. Identify key roles that are involved in the I-9 process, train HR and hiring managers routinely, and document these trainings.

4. Prepare an Audit Response Plan

• Identify an audit response team, including any external strategic partners.
• Routinely remind leadership, HR, operations, and other key personnel what an NOI looks like and what they should do immediately upon receipt.
• Train staff to respond calmly and professionally upon receiving an audit notice.

Feeling Lost or Overwhelmed?

I-9 compliance shouldn’t be a chaotic scramble when you receive a Notice of Inspection. It should be a strength your organization has already built and practiced.

Beyond compliance, prioritizing a proactive ICE audit readiness strategy:

• Reduces risk and avoids costly financial penalties.
• Enables confident hiring across locations and work areas.
• Ensures fair, non-discriminatory employment practices.
• Protects your brand and reputation during government audits.

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