Preparing Your Company for an ICE I 9 Audit — Best Practices Every Employer Should Follow

As federal immigration enforcement has been intensifying, employers across industries have been served with an increased number of I-9 audits, with the federal government scrutinizing their hiring and employment eligibility verification practices. Even well‑intentioned organizations can face steep penalties for paperwork or procedural errors during a Form I‑9 inspection, even if all employees are legally authorized to work.  Preparing proactively for an I‑9 audit is not just a compliance exercise; it is one of the most effective ways to minimize your company’s financial, operational, and reputational risks.

Why preparing for an I‑9 audit matters

1. ICE audits are increasing

The past year has brought a resurgence in worksite enforcement by U.S. Immigration and Customs Enforcement (ICE), with more employers experiencing targeted inspections and civil enforcement actions.  Random I-9 audits have also increased in recent months, with numerous employers simply being caught up in the strict immigration enforcement agenda. 

2. Failure to comply can lead to costly penalties

Penalties for noncompliance can be very high, ranging from $288 to $2,861 per form even if all employees are legally authorized to work.  Repeated or substantive violations can easily lead to 6-digit penalties.  If the audit reveals unauthorized workers in addition to the paperwork violations, the fines can be even higher. 

3. Employers get a very limited time to respond

When an I‑9 audit is initiated, employers typically receive a Notice of Inspection (NOI) and an administrative subpoena requiring them to produce I‑9 forms and other corporate records within three (3) business days. Delayed or incomplete responses can significantly increase liability and may even raise an inference of bad faith in complying with I-9 regulations.

4. An internal audit shows good‑faith compliance

Although not required by law, internal I‑9 audits are considered a best practice and demonstrate an employer’s good-faith effort to comply with the proper requirements. Good‑faith efforts can help reduce potential penalties during an official ICE inspection.

Best Practices for Preparing for an I‑9 Audit

a. Conduct regular, neutral internal I‑9 audits

Internal audits should be performed consistently across the workforce and not targeted based on an employee’s citizenship status or national origin. Employers may audit all I‑9s or select a neutrally defined sample (e.g., by hire date, location, or department). Before beginning, define your purpose, scope, and communication plan.

Internal audits allow employers to identify and correct technical errors, detect missing documentation, and strengthen compliance before facing a government inspection.  They also allow employers to identify patterns in the instances of non-compliance and put in place policies and internal procedures to avoid repeating the same mistakes in the future.

b. Ensure everyone on the payroll has a completed I-9 on file

With only a 3-day window to produce the I-9s in an official audit, employers often find themselves scrambling to locate the required records.  More often than not, when confronted with a short notice deadline employers realize that some I-9s are missing.  It may be because they were misplaced; or the employer transitioned to a digital or third-party onboarding platform and older I-9s were kept separately; or there was a turnover in the HR department and some I-9s simply fell through the cracks.  While the real reason for a missing I-9 may not be nefarious, the law does not provide any exceptions from the rule that all employees hire after November 7, 1986, must have a completed I-9 on file. 

An internal audit will give employers the opportunity to catch any missing I-9s and ensure that one is completed right away.  While still subject to penalty for a timeliness violation, a late I-9 will always be better than a missing I-9.

c. Ensure I‑9 completion is accurate and timely

Key compliance checkpoints include:

• Employees must complete Section 1 on or before their first day of employment.
• Employers must complete Section 2 within three business days of the employee’s start date.
• Employers must not require or suggest specific documents; employees choose one item from Lists A, or a combination of List B and C.
• Employers must ensure that the form is fully and correctly completed.
• Every I‑9 must be fully legible, dated, and signed.

d. Maintain proper I‑9 retention and storage

Employers must retain each I‑9 for three (3) years after the date of hire, or one (1) year after termination, whichever is later. Additionally, I‑9s should be stored separately from personnel files.  This is especially crucial for larger employers.  If ICE only provides three business days to produce all I-9s in response to an audit, having to track each of them from individual personnel files would make it impractical to meet the deadline.   

For employers using electronic I‑9 systems, ensure the system meets DHS requirements including secure storage and detailed audit trails. Noncompliant systems can lead to penalties.

e. Track expiring work authorization and reverify correctly

Employers must track expiration dates for employees with temporary work authorization and complete Supplement B (formerly Section 3) before authorization expires—not after.  Reverification protocols also apply for certain rehires within three years of the original I‑9.  

f. Train HR staff and establish an ICE response protocol

Training should include:

• How to correctly complete Form I‑9
• How to handle employee questions
• What to do when receiving an NOI or facing an unannounced ICE or USCIS visit

Conclusion: proactive compliance is the best defense

An I‑9 audit doesn’t have to be disruptive or costly—if you prepare. With enforcement increasing and penalties rising, employers who prioritize consistent auditing and up‑to‑date compliance practices are best positioned to navigate inspections confidently and minimize risk.

If you have any questions regarding the I-9 Employment Eligibility Verification process, or any other U.S. immigration-related questions, contact Attorney Raluca (Luca) Vais-Ottosen at rvo@dewittllp.com or 608-252-9291.