As U.S. Immigration and Customs Enforcement (ICE) continues to expand the scope of its worksite enforcement operations, it is important to understand why Form I-9 audits occur and how they are conducted.
What Triggers an I-9 Audit
ICE, through Homeland Security Investigations (HSI), has authority to inspect employer Forms I-9. Audits may be triggered by random selection, industry targeting, prior violations, or tips/complaints.
An I-9 audit is a civil action, but it can result in significant monetary penalties and, in cases involving extreme violations, criminal referrals.
The Initial Phase: The Notice of Inspection (NOI)
The audit process typically begins when ICE serves a (NOI), after which employers generally have three business days to produce:
- All Forms I-9 for current employees
- Forms I-9 for terminated employees within the retention period
- A current employee roster
- Payroll records
- Business formation/corporate documents
- E-Verify records (if applicable)
Upon receipt of the NOI, company leadership and internal counsel should be notified as well as external immigration counsel. It is a best practice for the company to have a single point of contact for all communications with ICE. All I-9 forms should be reviewed for compliance by experienced professionals prior to providing them to ICE. It is important to note that at no point should an employer attempt to backdate or impermissibly alter the forms.
Phase 2: The ICE Audit
After receiving the Forms I-9 and related documentation, ICE will thoroughly review the employer’s forms for substantive and procedural errors. This review can take several months. Substantive errors are more serious as they typically relate to issues (e.g., unsigned, late, or missing forms) that impact the validity of the employment verification process while procedural issues (e.g., entering certain data incorrectly) are typically minor matters that ICE will often allow 10 days to correct without imposing a fine.
Examples of common compliance issues include:
- Missing or late Forms I-9
- Incomplete Sections 1 or 2
- Missing signatures or dates
- Accepting improper documents
- Failure to reverify expiring work authorization
- Form retention errors
If ICE’s investigation leads to a determination that an employer has knowingly hired or continued to employ undocumented workers, this is the most serious type of violation and significantly enhanced penalties will apply.
Phase 3: Ice Findings and Fine Determinations
Following the Form I-9 review, ICE will issue one of the following:
- Compliance Letter – Good news; no material violations found.
- Notice of Technical or Procedural Failures – not a penalty notice; opportunity to cure correctable violations.
- Notice of Suspect Documents – formal notice indicating that certain employees’ work authorization documents appear invalid
- Notice of Intent to Fine (NIF) – outlines alleged violations and proposed penalties
Substantive and uncorrected paperwork violations are assessed per violation (not per form) and are adjusted annually for inflation. Currently, these penalties range from $288 to $2,861 per violation. By way of comparison, a finding that an employer knowingly hired or continued to employ undocumented workers can result in fines from $716 for a first offense to over $28,000 for a third offense.
In determining the appropriate amount of a fine, ICE considers the following five factors:
- Size of the business
- Good faith efforts to comply
- Seriousness of violations
- Whether unauthorized workers were involved
- History of prior violations
If a NIF is issued, employers may try to negotiate a lower fine with ICE and, if unsuccessful, appeal the fine determination by requesting a judicial hearing before the Office of the Chief Administrative Hearing Officer (OCAHO).
The Conclusion: Action Items for Employers
With the cost of noncompliance so high and enforcement increasing to unprecedented levels, regular Form I-9 auditing should be treated as a core compliance function. Employers should:
- Conduct periodic Form I-9 audits
- Provide regular training for company onboarding and HR personnel
- Maintain proper retention schedules
- Develop and maintain a written ICE response protocol
Meltzer Hellrung regularly assists employers with internal audits, policy development, Form I-9 training, and government inspection responses. If you have questions about your organization’s Form I-9 practices or would like guidance on strengthening compliance protocols, our team is available to help.
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