Immigration and Customs Enforcement (ICE) I-9 Audits

All people who work in the United States must have immigration permission to do so. An I-9 form is an immigration document used to verify employment eligibility. All U.S. employers must properly complete Form I-9 for each individual they hire for employment in the United States. This includes both citizens and noncitizens.

Both employees and employers (or authorized representatives of the employer) must complete the form. The law regarding I-9 forms is enforced by Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS).

A new employee must complete an I-9 Form, also called an Employment Eligibility Verification Form, as part of the new-hire paperwork provided by their employer. If an employee is unable to read or write in English, the form allows for a translator or legal preparer to complete the form on behalf of the employee.

On the I-9 form, an employee must attest to their authorization for employment. The employee must also present their employer with acceptable documents evidencing (1) identity and (2) employment authorization. Within three days of hire, the employer then records the eligibility and identity document information on the Form I-9.

While employers are not required to file the I-9 forms with ICE, employers must keep these forms in the company’s file for current as well as past employees, to ensure availability of I-9s during an ICE audit. Employers must retain Form I-9 for 3 years after the employment date or 1 year after the termination date, whichever date comes later.

What is an I-9 Audit?

The United States Immigration and Customs Enforcement (ICE) may audit Form I-9s to assess employees’ employment eligibility and employers’ compliance with immigration laws. Federal immigration officials will review an employer’s I-9 forms to make sure they are accurate, complete, and that all its employees have the proper work authorization.

An audit may be triggered for various reasons, including random samples or reporting by ex-employees. Certain business sectors are more susceptible to I-9 audits, such as food production.

ICE may request the I-9 forms and the following additional documents:

• A list of all current employees
• A list of employees terminated in the last three years
• Corporate documents
• Business licenses
• Payroll copies

What Documents Prove Identity and Employment Authorization?

Acceptable I-9 evidentiary documents are:

List A documents
The documents on List A show both identity and employment authorization. Employees presenting an acceptable List A document may not be asked to present any other document.

• U.S. Passport or U.S. Passport Card
• Form I-551, Permanent Resident Card or Alien Registration Receipt Card (“Green cards”)
• Form I-766, Employment Authorization Document Card
• Foreign passport with Form I-94 or Form I-94A with Arrival-Departure Record, and containing an endorsement to work
• Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form
• I-94 or Form I-94A
• Foreign passport containing a Form I-551 stamp or Form I-551 printed notation

List B documents
The documents on List B establish only identity. Employees who choose to present a List B document must also present a document from List C. Employees may present one of the following unexpired List B documents:

• Driver’s license or identification card issued by a state or outlying territory of the U.S., provided it contains a photograph or information such as name, date of birth, gender, height, eye color and address
• School ID card with a photograph
• Voter registration card
• U.S. military card or draft record
• Military dependent’s ID card
• U.S. Coast Guard Merchant Mariner Document (MMD) card
• Native American tribal document
• Driver’s license issued by a Canadian government authority

Acceptable List B documents for individuals under the age of 18 who are unable to present a document listed above:

• School record or report card
• Clinic, doctor or hospital record
• Day care or nursery school record

For minors under the age of 18 and certain individuals with disabilities who are unable to produce any of the listed identity documents, special notations may be used in place of a List B document.

List C Documents
The documents in List C only establish employment authorization. Employees who choose to present a List C document must also provide a document from List B, evidence of identity.

Employees may present one of the following unexpired List C documents:

• U.S. Social Security account number card that is unrestricted. A laminated card is acceptable. A card that includes any of the following restrictive wording is not an acceptable List C document:
  • NOT VALID FOR EMPLOYMENT
  • VALID FOR WORK ONLY WITH INS AUTHORIZATION
  • VALID FOR WORK ONLY WITH DHS AUTHORIZATION
• Form FS-240, Consular Report of Birth Abroad
• Form FS-545, Certification of Birth Abroad issued by the U.S. Department of State
• Form DS-1350, Certification of Report of Birth issued by the U.S. Department of State
• Original or certified copy of a birth certificate issued by a state, county, municipal authority or outlying territory of the United States bearing an official seal
• Native American tribal document
• Form I-197, U.S. Citizen ID Card
• Form I-179, Identification Card for Use of Resident Citizen in the United States
• Employment authorization document issued by the Department of Homeland Security (DHS). Some employment authorization documents issued by DHS include but are not limited to:
  • Form I-94 Arrival/Departure Record issued to asylees or work-authorized nonimmigrants (for example, H-1B nonimmigrants) because of their immigration status
  • Form I-571, Refugee Travel Document
  • An unexpired Form I-327, Reentry Permit Form N-560
  • Certificate of U.S. Citizenship or Form N-561
  • Replacement Certificate of Citizenship or Form N-550
  • Certificate of Naturalization or Form N-570
  • Replacement Certificate of Naturalization
  • A Form I-797 issued to a conditional resident may be an acceptable List C document in combination with his or her expired Form I-551

The employer must examine the employment eligibility and identity document(s) to determine whether the document(s) reasonably appear to be genuine and to relate to that specific employee. The list of acceptable documents is long, and employers may not ever see some of them. For ease of identifying acceptable documents, the U.S. Citizenship and Immigration Services (USCIS) maintains a website with images of each of these documents.

Are There Exceptions to the I-9 Requirements?

A Form I-9 does not have to be completed if:

• The employee was hired on or before Nov. 6, 1986 (or on or before Nov. 28, 2009, if employment is in the Commonwealth of the Northern Mariana Islands) and has a reasonable expectation of employment at all times
• The employee is doing casual domestic work in a private home
• The employee is an independent contractor
• The employee is employed by a contractor providing contract services, such as a temp agency
• The employee is not working on U.S. soil

Discrimination Is Prohibited

The 1986 Immigration Reform and Control Act (IRCA) deemed American employers legally responsible for verifying the employment eligibility of all new employees. While the I-9 Form is not required for volunteers or contract-based employees, foreign nationals on employment visas are required to complete the form.

The legislation also includes anti-discrimination clauses. Under the IRCA, U.S. citizens, permanent residents, and asylum seekers legally allowed to work in the United States cannot be denied employment or be terminated based on country of origin or citizenship. The IRCA’s anti-discrimination policy is enforceable for all employers with three or more workers.

Employers’ Form I-9 Compliance: How to Avoid Costly Errors

Below are some suggestions that provide employers with protection against unfavorable inspection results. However, every situation is unique, and the advice of a qualified attorney is appropriate to determine From I-9 compliance.

• If you’ve completed Form I-9 late (which you should always avoid), never backdate an I-9 as that would be considered fraud
• Fill out Form I-9 required information completely, even if you retain copies of the requested documents
• Request proof of continued employment eligibility if the employee’s work authorization is the type that can expire.
• However, do not reconfirm employment eligibility by requesting new documents when you have been presented with an unexpired green card.
• Employers and employees must sign and date the form; otherwise, an employer may have committed a substantive error
• Develop training and guidelines for human resources or other employees who will be completing I-9s on your company’s behalf

Do I Need an Attorney to Comply With I-9 Form Requirements?

Employers may need to contact a qualified I-9 immigration attorney to develop consistent practices of compliance and oversight with respect to acquiring and retaining employment eligibility verifications.

A qualified attorney may also ensure that employers don’t violate Immigration and Nationality Act (INA) anti-discrimination provisions or other state and federal antidiscrimination laws.

If ICE notifies you that you will be the subject of an I-9 audit, it is best to contact an experienced immigration attorney, who can protect your rights, review your I-9 forms and related documents, and help you prepare for the audit.