I-9

Frankly Speaking: Increased Focus on Immigration Means More I-9 Audits

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I’m having one of those days when distractions are swirling all around me. My wife, Becky (a.k.a. Mimi), and I (a.k.a. Papa) are watching our grandchildren, and today’s a snow day. Kenzie (4) is yelling, “Mimi! Connor touched my sandwich!” Connor (7) is yelling, “Kenzie ate one of my blueberries!” And the cat is sticking her nose in my coffee. Now, the snarky gremlin in my head is wide awake because of all the extra stimulation. [I’m not snarky; I provide unfiltered observations and commentary.]

I threw a dart at my compliance dartboard to choose a topic, and it landed on one of my favorite areas: Form I-9 compliance! [He doesn’t have a compliance dartboard; he’s just an I-9 geek.] Wait! Before you decide to skip this article, hear me out. [I think you just drank a whisker floating in your coffee.] A few facts point to significantly increased enforcement of I-9 compliance by U.S. Immigration and Customs Enforcement (“ICE”) in the coming months and years. 1. In President Trump’s first term, the number of I-9 audits was at an all-time high. 2. The Trump administration has quickly implemented extensive changes in U.S. immigration policy and work authorization enforcement, clearly a top priority in his second term. 3. The administration has expressed the goal of at least doubling the number of I-9 audits conducted by ICE.

What’s an I-9?

Federal law requires all employers, regardless of size, to properly complete and maintain an I-9 form for every employee. However, most employers have no idea whether their I-9 forms are completed correctly. [It pains me to say this; he’s not wrong.] While there are several reasons to be concerned about whether your company’s I-9s are completed correctly, the reason that gets most employers’ attention is the penalties. Effective 01/02/2025, “Civil penalties for I-9 paperwork violations”[i] were increased to a minimum of $288, up to $2,861…PER FORM. Penalties are assessed based on the percentage of forms containing one or more errors. For example, Snarky, Inc. [I know you’re referring to me] has 100 I-9 forms subject to an audit. Error-related civil money penalties would be calculated based on the following schedule:[ii]

  • 1% to 9% – $288 per form
  • 10% to 19% – $717 per form
  • 20% to 29% – $1,148 per form
  • 30% to 39% – $1,579 per form
  • 40% to 49% – $2,007 per form
  • 50% to 100% – $2,861 per form

If 75 percent of Snarky, Inc. I-9s contain at least one error—the national average error rate—penalties would be in the neighborhood of $214,575! [I think that got their attention.]

Don’t ASSUME You’re Doing Anything Right

Let’s start with the most basic point and work up from there. First, one of the most common reasons for I-9 errors is that the person or people tasked with completing I-9 forms have not been trained to complete the form correctly. Looking at our example above, when Snarky, Inc. promoted EC to office manager, her new responsibilities included completing I-9 forms. Without the benefit of training and assuming she knew how to complete the form, EC repeated the same three common mistakes on all 75 I-9 forms she completed. Later, EC was replaced by MK, an experienced office manager who had received training on completing I-9 forms. All 25 I-9 forms MK completed were perfect.    

When ICE selects an employer for a Form I-9 audit, the goal is to identify technical and substantive paperwork violations, document fraud, and whether the employer has knowingly hired unauthorized workers.

As noted above, technical and substantive paperwork violations are very costly and add up quickly. The most common I-9 violations include:

  • Failing to complete and maintain an I-9 form for every employee.
  • Using an expired I-9 form. All employers must be using the form with “Form I-9 Edition 08/01/2023” in the lower left corner and either “Expires 07/31/2026” or “Expires 05/31/2027” in the upper right corner. *This is important whether you’re using the hardcopy form available from USCIS or an electronic version from a payroll, onboarding, or I-9 service provider.
  • Failing to complete the I-9 within the required timeframe. The employee must complete Section 1 on or before their first day of work. The employer must complete Section 2 within three business days of the employee’s start date.
  • Missing or incomplete information, such as dates, document numbers, and/or signatures.
  • Failing to ensure the employee attests to their citizenship or immigration status, review and verify the proper documents, or reverify an employee’s expiring work authorization (when necessary).

In addition, there’s another error that an increasing number of employers are making. Employers using electronic I-9 services – regardless of whether through a payroll provider, onboarding service, or other source – assume their I-9 forms are correct, complete, and properly maintained. Further, employers often fail to recognize that they, not the service provider, are responsible for any fines assessed for I-9 errors.

With the potential for financially devastating penalties only a random ICE I-9 audit away, employers have a few options. The most obvious but least effective option is to do nothing. Employers who choose this option accept the financial risk of existing and future violations. Another option is to conduct an I-9 self-audit. However, because self-audits rarely identify all  the errors, they’re often ineffective. Remember, just one error on a form triggers a fine.

The best option is to engage an expert to conduct an assessment of the company’s I-9 forms, documentation, procedures, and practices. [Let me guess, you know someone with I-9 expertise.] I’ve reviewed and helped clients correct thousands of I-9 forms. I’ve also consulted on the development of an electronic onboarding program, including ensuring compliance with the myriad of complex I-9 regulatory requirements. And, some would say, most importantly, I’ve participated in multiple I-9palooza conferences! [I’m still shocked that I-9palooza is a real thing.]

If you’re not 100 percent sure that all your I-9 forms, documentation, procedures, and practices comply with the regulatory requirements, let’s discuss an I-9 assessment. Compared to the financially staggering fines, an assessment is a minor investment. Please email us at hranswers@hrcexperts.com, or call 585-565-3900 for more information.

[i] Federal Register, Vol. 90, No. 1, 01/02/2025, Rules and Regulations, Table 2―U.S. Immigration and Customs Enforcement Civil Penalties Adjustment https://www.govinfo.gov/content/pkg/FR-2025-01-02/pdf/2024-31204.pdf

[ii] Estimated based on previously published civil money penalty schedules.

Frankly Speaking is written by Frank Cania, president of HR Compliance Experts LLC and his snarky alter ego gremlin, Mort.

©2025 HR Compliance Experts LLC

Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.