I-9 Compliance & Worksite Enforcement in 2026: What Employers Need to Know

TLDR:

• ICE’s March 2026 fact sheet redrew the line between “correctable” and “immediately fineable” Form I-9 errors, and a 2025 executive order has widened worksite enforcement to employers of all compliance levels.
• Civil penalties for I-9 paperwork violations are assessed per form (starting at $288 each), meaning even minor, repeated errors can add up fast across a workforce.
• Employers should run a documented internal I-9 audit, correct errors the right way (no white-out, no backdating), and confirm their electronic I-9 system meets the new scrutiny on audit trails and e-signatures.

Transcript:

Hi, everyone. I’m Jennifer Behm. Thank you for joining me this afternoon. I’m a partner with Berardi Immigration Law and Immigration Counsel for Barclay Damon. Over the next twenty minutes, we’re going to dive into a topic that can be somewhat boring, but I’m hoping to keep all of you somewhat entertained today, and that is with respect to Form I-9 compliance.

So, two things happened that changed the enforcement landscape for I-9 compliance and things matter, we have a executive order that expanded worksite enforcement priorities and an ICE fact sheet. So in our time together i’m going to do four things we’re going to go through the mechanics of the form itself. So we’re all working from the same baseline i’m going to explain exactly what changed under the ice guidance. We’re also going to talk numbers on what noncompliance actually costs for employers. And then I’m going to wrap up with sort of a practical playbook on doing an internal audit, how E-Verify use plays into that, what to do to correct errors and what not to do if you find them during an internal audit. So let’s kick it off.

Why is this topic more urgent in 2026 than it was a year ago? Well, two developments, right? So the first is when the Trump administration came in, in January of 2025, they issued an executive order called Protecting the American People Against Invasion. And this expanded enforcement priorities well beyond removable immigrants who had criminal convictions. It revoked federal funding from jurisdictions that don’t comply with federal immigration law, and that pushed more resources towards enforcement overall. It increased ICE presence, specifically for worksite audits and raids on certain employers who are being targeted. And it also means that even fully compliant employers can face site visits. The second development on why this is very relevant and why compliance is, you know, has higher stakes is a little bit more technical. And that is because back on March. Of this year, ICE released an updated fact sheet. It was a little bit quiet on how I-9 inspections are conducted and it was framed as guidance, but functionally. It really redrew the line behind between what counts as a technical correctable violation versus what is a substantive violation.

And several errors that used to be fixable within a grace period are now immediately findable for employers. That was a big change and it was kind of a quiet, quiet rollout. We also see new scrutiny on electronic I-9 and onboarding systems specifically.

So I’m going to come back to that because it’s a big practical change probably for anyone tuning in. But let’s first ground ourselves in the basics first and look at the I-9. What is it? Who needs it? And let’s start with the fundamentals.

So at a very pure baseline, any company that has hired an employee after November six, 1986 needs a form I-9 on file, and that includes U.S. citizens. That’s the most common misconception I see among new H.R. staff is that is the assumption that this forms only for foreign nationals or visa holders. And yes, I’m an immigration attorney. I-9s, when I’m getting questions, usually is related to completing this form for foreign nationals or non-U.S. citizens.

But it’s still very, very relevant to U.S. citizens. And I’m going to cover some of the mistakes we see, even when the form is dealing with the most simplest employee who’s presenting a passport. Structurally, the form has three parts. And in a few slides, we’re going to get into that. section one is employee information so the employee will fill that out section two is employer review and verification that’s on you, HR, or whoever is responsible within a company to complete that form and make sure it’s being done properly and then a separate page is called supplement b it used to be called section three on older editions of the I-9 and that covers re-verifications and rehires so we’re going to look at screenshots of all three in a minute but I want to start with why should you care about the I-9 beyond, well, it’s the law, we need one.

Well, employers who violate I-9 rules are exposed to civil fines, and those are assessed per form, not per the company. There’s criminal penalties for knowing that there are violations with your I-9s. There could be debarment if you have government contracts. There could be back pay obligations. You might need to terminate employees, which can be very disruptive to the workforce or a project. And one thing that often surprises some of my clients when we’re talking about these things is that liability does not necessarily stop with the company. The government is now pursuing liability against corporate officers and specific HR representatives and supervisors. So that has some pretty big stakes attached to completion of I-9.

Okay, let’s get into the form. Let’s go with section one. So this slide has a screenshot of the current form I- nine. And I want to walk you through it point by point because this is where a lot of audit findings start. So first things to know is that new hires, new employees must complete and sign this section no later than their third day of employment on the job. Signing too early or too late, you’ve got a timing violation. And note the anti-discrimination language at the top.

Employees choose which acceptable documentation that they can present, but that can be from a specific list that is attached to the I-9 form. I don’t think we have a chat in this, but if you Google USCIS, US Citizenship and Immigration Services Form I-9,

you can download the government’s most current version of the form. And it’s very important that we are going with the current version that is available. So employers will see a list there. There’s column A, column B, column C documents.

If an employee presents a column A document, that’s good to go. And on the next slide, I’ll show you where that gets completed. But the employee must be able to select which documents they want to present to an employer. And only when an employer goes to complete the section two is when they can compare it to the acceptable documents and then tell the employee this is or isn’t acceptable. So you can’t say we must see your passport or we must see your driver’s license and a birth certificate. You don’t want to be accused for treating employees differently based on citizenship, immigration status, their national origin that can open up its own can of worms and violations so be really careful when you’re communicating to imp to new hires and employees on the documentation i recommend giving them the entire printed I-9 form with the list of options okay and then the employee is going to check off one of these boxes are they a citizen of the us are they a non-citizen national, are they a lawful permanent resident, which is a green card holder, or are they a foreign national that is authorized to work?

Those will be your non-immigrants who may hold H-1B, OPT, they might be students in OPT status, O-1, L-1 intercompany transferees. So there will be identifiers there that they need to complete. Let’s flip to what the employer is responsible for.

That’s section two. This is the employer’s responsibility. And the clock starts ticking the moment employment begins. So you or your authorized representative have three business days from the employee’s first day of employment to physically examine the documents that they’re giving to you or complete an alternative procedure if you have one in place. We’re not going to get into those documents verifications because that gets a little bit beyond keeping this short for a lunchtime webinar, but core rules are list A document alone or one document from list B and one document from list C. You don’t need to mix beyond that. So for every document, you want to make sure that you’re recording the title, you’re noting the issuing authority, the document number and the expiration date. And so on this field, when I’m helping employers with their I-9 reviews, this is something, the one thing on this part of the section that often gets missed is the start date of employment. So you want to make sure that there isn’t a mismatch between the date of the employee’s actual start and what your payroll system’s hire date is. That’s one of the first things that an auditor will check. So be careful with that block.

You’ll see the first date of employment right next to that bolded language. Make sure that you are completing that properly. OK. And then you also want to look at the certification language at the bottom of this section,

because it’s important for your own protection. You’re attesting that you’ve examined their document, that it appears to be genuine and related to the employee and that, to the best of your knowledge, that employee is authorized to work in the United States. You are not attesting to their actual identity or their immigration status. just that the documents reasonably appear valid on their face, okay? And that distinction matters for your good faith defense and for staying clear of discrimination claims if something were to boil over later. You don’t have to be an immigration expert or a document expert. You are just looking to make sure that that document is reasonably related to the employee that you’re hiring and cross-referencing it to make sure that that person is authorized to work.

And the easiest way to do that is to refer back to the document list printed as part of the I-9s, which list acceptable documents. On a side note, so for example, there is a Social Security card. I believe that’s a List C document. If it has letters in the background that says valid with DHS work authorization only, it’s not acceptable for I-9 purposes. That’s another common mistake that we see. So you want to make sure it’s in an open social security card, if you will. All right. So that is section two for the employer compliance attestation. And then let’s go into supplement B, which used to be called section three. It is now called re-verification and rehires. This section only comes into play for employers in three such situations. One is an employee’s work authorization.

So they may be a foreign national. They will be a foreign national. Their work authorization needs reverifying. That means that there was an expiration date tied to the original document they gave to you. Another situation would be that the employee is rehired within three years of their original I-9, or perhaps the employee has a legal name change. So you can use this section several times. Below this screenshot, you’ll see the same date of rehire or reverification section again.

So there’s this form on part of the I-9 can be used multiple times. Here’s a detail that trips people up sometimes. The employee can present new documentation and you want to make sure that you are properly verifying those and reestablishing continued work authorization. And that’s what list A documents do or list C documents, not list B. List B is for identity only, okay? You already know who they are. What they are reestablishing is continued work authorization. So maybe at that point they are presenting a green card, which is a list A document that is open work authorization. You re-verify it once and they’re good to go. Maybe they are providing an unrestricted social security card. So you don’t need to compare it

to any work authorization documents in the context of hiring foreign nationals. This certification at the bottom, it mirrors section two. And again, it’s that you are attesting that the documents appear genuine, they’re relating to the individual and to the best of your knowledge that they’re authorized to work. So you want to be careful to check again another expiration date if that comes up, because you may need to re-verify a foreign national several times throughout the course of their employment. Okay. My understanding as well is that re-verifications do not go through the E-Verify system. So that’s something to be aware of and to make sure that you are, or your HR teams are calendaring appropriately, whether you’re using an electronic I-9 system, you want to make sure that you are timely re-verifying employees who present work authorization that need to be, that have an expiration date, temporary work authorization.

Alright. So now that we’ve covered the mechanics of the form itself, let’s get into what changed back in March, because this may change how HR teams are handling all, all aspects of the I-9. So back on March 16th, ICE released an updated fact sheet on how inspections are conducted under the Immigration and Nationality Act. So it’s officially framed as guidance rather than a formal rule change. But functionally, it should shift internally how compliance gets evaluated. And I’d argue that it’s really a very consequential update, perhaps the most consequential update we’ve seen on I-9 in years. So three changes matter most. First is that ICE redrew the line between technical and procedural violations versus substantive ones. I mentioned earlier that historically a technical violation gave employers an opportunity to fix things before they were fined and several errors that used to sit in the correctable category, now they’ve been reclassified as substantive. And this means that they’re subject to immediate fines.

Employers don’t have a chance to fix them. So if you’re audited, that is a very meaningful reduction in your margin for error and can significantly increase fines. ICE also formalized an entirely new category of technical violations. So errors that previously had no classification at all and no associated fine or a penalty, they’re now considered to be enforceable infractions. And so, again, the universe of things that can get you fined got even bigger. And the third thing to note about this update is that everyone, and I want everyone who’s listening to take this back to your IT and your HR tech teams. Electronic I-9 systems are facing heightened scrutiny. And I know that there’s a whole bunch of different types, but employers are now accountable not just for whether an individual form was filled out correctly, but whether the underlying system enforces required fields and timing rules and whether it maintains an audit trail and properly captures and tracks corrections. Does your I-9 process meet federal standards for how e-signatures are captured and long-term record keeping? So make sure if you’re using an electronic onboarding platform, be sure to go back to your vendor directly and ask, how are they handling I-9 audit trails and correction tracking?

Because that is part of what’s getting evaluated in an inspection. OK, ultimately, at the bottom line, there is less room than we previously had pre-March 2026 for employers to self-correct during an internal audit, if you will. And now the government has cast a wider net of what counts as a violation in the first place. Okay. So that brings us into our next topic. What is this going to cost you? I put together a slide to make this a little bit more concrete. Again, penalties for I-9 violations are assessed per form, not company. So. If you have a single ice inspection covering a company that has one hundred employees, that inspection can reach your entire workforce, plus any terminated employees still sitting within your retention window. That’s a pretty big scope. And the statutory minimum for a first time offense paperwork violation is $288 per form. If all one hundred of those forms just have one minor deficiency each, you’re already looking at nearly $30,000 in minimum exposure. And that’s before any repeat offense multipliers, before any aggravating factor adjustments based on your business side or the seriousness of an offense comes into play. If you are or if the government determines that this company knowingly employed unauthorized workers, those fines are going to only get more expensive and steep. So, I do have some good news. I mean, mitigating factors like good faith, a documented history of a company’s self-audit attempts, and prompt correction of errors that can reduce exposure but the reduction is only available to employers who can document those efforts okay so we can’t just say a company acted in good faith you have to have the paper trail to prove it so be mindful of that talking about you know if you are doing an internal audit you want to document the tools and be mindful of the paper trail you’re building This is a good little segue into E-Verify.

What is E-Verify? So E-Verify is an internet-based system that compares the I-9 information against what the Department of Homeland Security, DHS, and the Social Security Administration records have to confirm someone’s employment eligibility. And typically you do this online and it’s done in three to five seconds. E-Verify, however, does not determine or provide someone’s immigration status. So it’s not intended to be used as a prescreening tool for applicants before you hire them. And it’s also not a safe harbor that shields employers from worksite enforcement or audits.

Okay. Enrollment in E-Verify is voluntary for most employers. It is mandatory for federal contractors and subcontractors. And some states also layer on their own mandates. So you need to confirm how that applies to you and your company specifically. But one practical consequence is employers who are enrolled, the social security field in section one, which is otherwise a voluntary field for the I-9, it does become required. And sometimes this can catch Some of our clients who are hiring foreign

nationals, if they are starting immediately when they get to the United States, yet they don’t have their social security number issued, this can come back as a tentative non-confirmation, a TNC. So it does become a little bit bulky and I’m going down a bit of a rabbit hole that is beyond the scope of this webinar today. But E-Verify is just one piece of I-9 compliance and it’s an option. The other piece, which I really want to take a bit more time to focus on today, is a company running their own internal I-9 audit program. And this is, in my opinion, one of the single highest leveraged things employers can do. So before a company starts a self audit of their existing I-9s, You want to make sure that you have a written I-9 policy that’s applied consistently to every employee because inconsistent application when doing an internal self audit is it can also open up a company to discrimination risks. You don’t want to pick and choose which employees I-9s you are auditing. So compare your I-9 records against a full payroll list because that’s actually one step of how ICE’s own audit process begins. You want to find the discrepancy before they do. You also want to budget time. Five minutes per form for a thorough review could be a reasonable planning, assuming that we’re not expecting a ton of egregious errors and that compliance has been mostly maintained. Five to ten minutes, it adds up fast. So this isn’t a project to take on lightly. And before you get started, you want to keep a tracking sheet the whole way through. There are a lot of resources out there online. But things to track are the employee’s name, the error type, the section, whether it’s corrected, and I’ll talk about corrections in a minute, the date it’s being audited. And that log becomes part of your good faith documentation if the government did come in and wanted to audit. What else? A cadence for internal audits, you know, maybe once a year for employers. Or even if you’re a company that you’re in a higher risk industry for audits, that could be agriculture, hospitality, construction, manufacturing. Those are the ones that ICE has historically targeted for a more frequent audit process. Maybe even every six months if you can dedicate those labor resources. And again, time is money. But if you’re not catching these audits and not showing good faith documentation to look at this, It’s a delicate balancing act. It depends on how strong your I-9 practices are to begin with. So keep that in mind. A quick note on storage. Companies should be keeping their I-9s separate from general personnel files. This isn’t strictly required by regulation, but it is recommended because if DHS or DOL, ICE, comes to review records and you’re handing over a big personnel file

You could be opening up the door for more inspection than just your I-9s. And so for paper files or even electronic files, we always recommend a standard sort of like a three-folder approach, if you will. Current employees who don’t need re-verification.

Current employees who do need re-verification and make sure that those re-verification dates are being properly calendared. and then terminated employees who are still within the retention window. So whether you have paper files or electronic files,

the retention obligation doesn’t go away. You need reliable access to these records at all times. So once you actually run the audit, let’s assume you’re going to find errors. Most companies do. Let’s talk about how to fix them correctly.

This table is a very good quick cheat sheet. Screenshot this slide. Take a little picture. Before I walk through this, one rule sits above these errors and corrections. Please never erase, white out, or backdate a Form I-9. Okay? That is a big no-no. And if a government auditing officer sees that, they’re going to ding you for it. Every correction method here on this slide depends on that rule. You’re not backdating, you’re not erasing, you’re not waiting out when you’re doing an internal audit. A few here worth calling out, a missing employee signature in section one. If the employee is still with you, have them sign it and date it with this current date. And then add a brief note explaining that it was caught in an internal audit and this is the good faith correction. If the employee already left, there’s no fixing it. You just document the finding honestly and move on. There’s no retroactive signature you’re going to obtain from someone who’s no longer employed there. If section two was completed late, that also can’t be undone. The dates are the dates. Document the late correction in your audit log. Don’t alter the recorded dates to make the timing look better because that’s going to turn your paperwork violation into a more serious data falsification problem okay now if there is wrong or missing document information um one thing we see is using an outdated form so at the bottom of an I-9 there is always a date and that form is changing soon to an august of the form date. So be aware of that going forward. You should really always be pulling your I-9s online from a live system or making sure that your vendor, if you’re using an electronic system, is always staying up to date with the proper form edition used. But if you’re using a wrong document or an outdated form or you’re re-verifying it late, make sure you’re just doing a single line strikethrough of where something’s wrong, write the correct information, initial and date it with today’s date or the date that you’re updating it, not the original date. And if you’re replacing an entire form, staple the old one behind a new one rather than destroying it. Okay. And then something that sometimes, again, for those who are in industries where you are hiring non-native English speakers and they need a translator to help with the I-9, make sure that you are attaching, it’s called Supplement A for a preparer or a translator. Have that translator sign that if available. And if not, you note it in the file.

Okay. So it’s been about 30 minutes. Let’s move on wrapping it up. Takeaways. The rules are less forgiving in 2026.

The penalties are assessed per form. The best protection you have when doing an internal audit is making sure that you have a documented, consistent practice paired with correcting errors the right way when you found them. I’d love to keep talking if you have a specific scenario from your own workforce. Maybe it’s a tricky verification. Maybe you are working on an internal audit. So my contact information is available and You can find us at Berardi Immigration Law. We are also very active on LinkedIn as well. And remember, today is just general education. This is not legal advice for specific back sets. If you’d like to speak further, please don’t hesitate to contact me and we can go through your situation.

Thanks for tuning in. Enjoy the rest of your Thursday and we’ll be back again for another webinar in two weeks.