The Trump Administration has made clear plans and definitive steps toward stronger immigration enforcement both within our borders and directly at our borders and embassies/consulates. This includes unprecedented agreement between DHS and the Internal Revenue Service to share information thereby allowing DHS to locate and prosecute individuals without proper legal status.
Beyond these high-profile stories, however, is the underlying notion the Trump Administration will not stop with these actions when seeking to “secure our borders and make America safe again”. The next logical weapon of choice would be auditing the I-9 records of employers as this information details the identity and current immigration status for every employee currently employed at a company. Additionally, penalties for I-9 violations can be substantial to employers beyond the loss of workers in an enforcement action. Current I-9 penalties for 2025 have been adjusted for inflation, with increased fines for both paperwork violations and knowing employment of unauthorized workers. The penalties for knowing employment of unauthorized workers range from $716 to $5,724 for a first offense, $5,724 to $14,308 for a second offense, and $8,586 to $28,619 for subsequent offenses. Paperwork violations, including failing to maintain proper documentation, are subject to fines ranging from $281 to $2,789 per violation.
So, what should employers do? First and foremost, all companies, large, medium, and small, should undertake a thorough review of their I-9 files, their I-9 practices, their I-9 procedures, and their I-9 policies to ensure that everything is in order and up to snuff before the government comes knocking. FordMurray recommends employers institute 5 important I-9 protocols during this internal review:
- Keep your I-9 files separate from all other files in your offices!
In the event of an audit, Immigration and Customs Enforcement (ICE) officers will show up with a subpoena, which normally provides the employer with three days to make “available” all I-9 files. Maintaining I-9 files separately for all employees allows the employer to easily pull the files for ICE in an audit. Additionally, in the subpoena, ICE will usually indicate all files present in the I-9 file must be made part of the audit documents – if you keep your I-9 files with the employees’ personnel files, this would mean that you must provide the full personnel file for the audit. Opening your personnel files to the government is ripe for opening the employer up to other potential audits and issues, so don’t create problems when you don’t have to.
- Keep I-9 files in three separate binders or files:
I-9 files should be organized as follows: (a) Current Employees who do NOT require reverification; (b) Current Employees who DO require reverification; and (c) Termed Employees (whose I-9s cannot yet be purged). Organizing your I-9 files into separate binders provides efficiency when reverifying and purging I-9 records. Additionally, if you are audited, you can be fined for any error on any record on file. Purging records in a timely way can save you thousands of dollars prior to any audit. As a reminder, an employer can purge a termed employee’s I-9 record one year from the date of termination or three years from the date of hire, whichever is later. Maintaining a system to regularly check the Termed Employees’ binder and purging those I-9 records when you can ensures that, during an audit, the government is not looking at records that you were not required to maintain.
- Conduct regular internal audits of your I-9 records:
When is the last time you have reviewed your I-9s for accuracy and correctness? If your answer is longer than 6-12 months, jump to number 5 and do it today!FordMurray recommends, at minimum, a yearly self-audit of your existing I-9 files. If you hire frequently or have significant turnover each quarter, we recommend that this yearly self-audit moves to an internal review of your files twice a year. Regardless of how experienced your I-9 process is, minor mistakes, can result in big fines. If you have recently onboarded a new HR team member, a new individual has taken over the I-9 process, or you have moved from a paper system to an electronic system in HR, these are all perfect opportunities to audit your files.
- What are your existing I-9 practices and policies?
If you don’t know the answer to this question, then you need to sit down, breathe, and begin getting these practices and policies written down and part of your handbook. Whether starting new practices and policies or reviewing existing practices and policies, the following questions are helpful in understanding whether updates are needed: Do you request the I-9 to be completed before the individual is hired? Do you tell the candidate which documents they should provide to complete the I-9? Do you copy documents only for those individuals who have temporary work authorization? Do you have more than one department handling the I-9 process? If you answered “yes” to any of these, you likely have problems with your existing practices and policies. Employers must verify an employee’s identity and eligibility to work in the US with the documentation required by that form and provided by that individual – anything more (or less) can land an employer in trouble.
- Do a self-audit of your forms and correct all errors found.
Do NOT try to hide the errors. Best practice is to document your corrections. If you find mistakes on a form, update them, then initial and date the change. We like to do our I-9 audits with a brightly colored ink on the corrections so ICE can see where and when these corrections were made. Showing your work, just like in school, is an excellent way to get credit for making the corrections (and an even better way of reducing penalties and fines)! This will also help you reverifying documentation for employees whose past documentation may have expired, or better yet, is coming up for expiration.
In the present environment, I-9 compliance should be at the top of the list for all employers. Beyond this environment, however, I-9 compliance is an important area for employers in ensuring that their internal compliance house is in order and opportunities for penalties are minimized.
If, after reading through this post, an employer finds they need or want help reviewing existing I-9 practices, FordMurray is ready to help! We help businesses of all sizes create I-9 compliance programs that are audit-ready. We offer complimentary consultations to assess your current practices and suggest changes and updates that fit your needs and budget. Contact us today to get started.
FordMurray will continue to monitor changes in immigration law and procedure and will update our clients on significant developments.
To stay up-to-date on the latest immigration news and for more information, please be sure to visit our blog.
