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With Increased ICE Spotlight on Compliance, Employers Need to Keep Form I-9 Records Up to Date


The United States Citizenship and Immigration Services (USCIS) requires employers to complete a Form I-9 to verify the identity of individuals who have been hired for employment in the United States and that they are legally authorized to work in the U.S.

All employers in the United States are tasked with making sure their new hires have completed Section I of the document on or before the employee's first day of work. While this applies to all employees, it is especially relevant for types of businesses, such as farms and restaurants, that may be more likely to be considered to employ non-U.S. citizens.

With increased emphasis by Immigration and Customs Enforcement (ICE) to ramp up on-site visits on businesses, it’s now more important than ever for employers to understand the Form I-9 requirements and use the most current form to remain compliant with these guidelines. 

Increase in enforcement efforts

On July 24, 2018, ICE issued a press release confirming activity it had promised to undertake under the Trump administration. In 2016, the acting director of Immigration and Customs Enforcement (ICE) announced that the agency would quadruple the number of Form I-9 on-site inspections in 2017 — with total arrests up 30 percent from the previous year.

A Pew Research Center study on the change in immigration arrests showed the biggest increases in the Miami, Dallas, and St. Paul regions. These regions are ICE areas of responsibility beyond the city limits. For example, the Dallas region covers northern Texas and the state of Oklahoma, whereas the Miami region covers Florida. ICE arrests in 2017 were up 76 percent in the Miami region, 71 percent in the Dallas region, and 67 percent in the St. Paul region, which covers four states in addition to Minnesota.

The crackdowns are not merely on the employees, but also the employers. The construction industry proved susceptible to on-site raids with more than 143,000 administrative arrests in 2017, causing companies to lose a portion of their workforce, potential business, and income.

The acting director of ICE then stated that on-site enforcement would quintuple in 2018. The agency served 2,738 I-9 Notices of Inspection (NOIs) to U.S. businesses around the country between July 16-20 of 2018; a total of 5,188 for the year through the end of that month.

In addition to construction, industries that attract undocumented workers include oil field services, meatpacking, agriculture, landscaping, hotels, restaurants, personal services (nails, laundry, car washes), and retail. One concerted effort by ICE saw 98 raids on 7-Eleven convenience stores in 17 states that resulted in 21 arrests in 2018.

Requirements and the cost of non-compliance

ICE is routinely requesting the Forms I-9 of only current employees as part of the NOIs, but can also ask for Form I-9s of terminated employees, within the retention period. The process, initiated by serving an employer with a Notice of Inspection, will require providing Forms I-9 in as few as three business days. Failure to do so, and even minor paperwork mistakes, can result in penalties. According to the USCIS, 76 percent of all paper I-9 forms have at least one error. 

In the case of an audit, in addition to the Form I-9, an employer may be asked to provide supporting documentation that may include a copy of the payroll, a list of current employees, Articles of Incorporation, and business licenses.

Substantive and uncorrected technical violations associated with Form I-9 compliance can range from a minimum of $220 to as much as $2,191 per form for a first offense.

Other monetary penalties are steeper, including for “knowingly hiring and continuing to employ” violations.

As ICE clearly intends to continue its worksite enforcement and its commitment to compliance, employers should be doing the same to mitigate potential fines, penalties, forfeitures, and debarment of federal contracts.

Who must complete a Form I-9?

All businesses in the United States with employees hired after Nov. 6, 1986, are responsible for ensuring that newly hired employees complete a Form I-9, regardless of citizenship. The process requires participation by both employee and employer to properly complete the form.

  • By signing Form I-9 and providing acceptable documentation (as noted on the Form I-9 List of Acceptable Documents), an employee confirms his or her identity and that he or she is authorized to be employed in the United States. He or she presents government-issued identification to the employer, to prove his or her identity and eligibility to legally work.
  • Upon presentation and verification of the acceptable document(s), the employer signs the Form I-9 attesting to the fact that the documentation appears genuine, and retains a copy of the Form I-9. Employers are required to accept whatever forms of identification prospective employees present, provided they are on the list of acceptable documents. Mandating that employees provide certain documents on the list (such as a driver's license and Social Security card), but refusing others that the list classifies as valid, is considered a discriminatory hiring practice.

Per the USCIS' definitions, the term "employer" includes recruiters and referrers for a fee, including agricultural associations, agricultural employers, or farm labor contractors. An "employee" is defined as anyone who performs labor or services in the United States for an employer in return for wages or other remuneration. Volunteers, unpaid interns, independent contractors, or those engaged in some types of casual domestic employment (such as babysitters) are not required to complete an I-9. However, employers should ensure accurate classification of workers to mitigate potential violations.

Visit the USCIS website to download the most recent version of the Form I-9, and follow updates as they happen. Paychex can assist in educating employees on the process for complying with the Form I-9 requirements and even offers an electronic I-9 processing solution.

Tammy Tyler

Tammy Tyler is an employment law compliance manager at Paychex, Inc., a leading provider of integrated solutions for payroll, HR, retirement, and insurance services.

This website contains articles posted for informational and educational value. Paychex is not responsible for information contained within any of these materials. Any opinions expressed within materials are not necessarily the opinion of, or supported by, Paychex. The information in these materials should not be considered legal or accounting advice, and it should not substitute for legal, accounting, and other professional advice where the facts and circumstances warrant.