Navigating Form I-9 compliance challenges: Your questions answered

In recent months, US Immigration and Customs Enforcement (ICE) has sharpened its focus on work authorization- and Form I-9-related enforcement, including escalating the volume of I-9 audits, expanding its interpretation of what constitutes technical versus substantive violations and tightening its scrutiny of employer documentation practices. These changes present employers with significant risk exposure and highlight the need for HR professionals to refine their employment eligibility verification processes.

During the recent Brightmine webinar, The Next Wave of Immigration Compliance – Preparing for Increased Enforcement, attendees raised practical questions about how to address I-9-related compliance challenges and understand the increased enforcement activity. Below, we answer some of the most common questions from the session and discuss key considerations for employers verifying and reverifying employees, maintaining compliant records and correcting past I-9 noncompliance.

Q: If an employee does not have Section 1 of the Form I-9 filled out by the end of their first working day, can you prohibit them from working until it is completed or dismiss them from employment?

Yes. If an employee does not complete Section 1 of the I-9 by the end of their first day of employment (the actual commencement of employment of an employee for wages or other remuneration, referred to as date of hire in the Department of Homeland Security regulations), they must not be permitted to work until the deficiency is corrected. If the employee still fails to complete Section 1 despite being given the opportunity to do so, termination is generally permissible because the employee has not satisfied a condition of employment required by federal law. However, an employer must apply its termination policy uniformly to all employees to avoid discrimination concerns under the I-9 rules.

In addition, if the employee fails to present acceptable identity and employment eligibility documentation — or an acceptable receipt for a document — within three business days of their date of hire, the employer must terminate their employment. 

Q: Does an employer have to retain copies of the original documents after review?

An employer may, but is not required to, copy an employee’s documents. However, the employer is not relieved of its responsibility to complete the Form I-9 simply by attaching copies of documents.

If it is the policy of the employer to copy the documents presented during the I-9 process, the policy should be applied uniformly and consistently with all employees. Only copying documents of employees of certain nationalities or citizenship may be an unfair immigration related employment practice. 

Although most employers are not required to make copies of an employee’s Form I-9 documents, E-Verify employers are required to retain a copy of the following documents with the Form I-9 if submitted by the employee:

• Employment Authorization Document (Form I-766);
• Permanent Residence Card, i.e., green card; or
• US passport or passport card.

Additionally, if an E-Verify employer chooses to use the alternative remote documentation procedure, it must retain a clear and legible copy of the documentation submitted, including the front and back if the documentation is two-sided. 

Q: Is an employer required to track and reverify any expiring documentation presented during the Form I-9 process, such as a passport? If so, does the employer use Supplement B or complete a new I-9?

An employer completes Supplement B, Reverification and Rehire, (formerly Section 3) of the Form I-9 if the employee’s temporary work authorization expires. Reverification is only necessary for List A or List C documents demonstrating temporary work authorization.

An employer also needs to reverify any intern working for it on Optional Practical Training as a foreign student who then changes to another status that allows them to continue working. The employer will reverify the intern’s work authorization with the new documentation in Supplement B or on a new form.

The reverification process does not apply to:

• US citizens;
• Non-citizen nationals; or
• Lawful permanent residents who supplied a Permanent Resident Card in support of Section 2 of the Form I-9, even if the Permanent Resident Card later expires during employment.

Similarly, reverification does not apply to US passports or US passport cards even if they have future expiration dates. Reverification also does not apply to List B documents, i.e., documents establishing an employee’s identity, such as a driver’s license or voter registration card. These documents only need to be valid (unexpired) at the time of initial I-9 review.

Q: I think I recall that there is a ten-day period during which ICE allows an employer to correct certain violations before incurring a fine. Is that for technical or substantive violations?

When an employer responds to a Notice of Inspection (NOI) by producing Forms I-9, ICE agents and/or auditors conduct an inspection of the I-9s for compliance. There are two categories of violations that ICE may find: technical and substantive.

 When ICE finds technical or procedural failures, the employer receives at least 10 business days to make corrections. An employer may receive a monetary fine for all substantive violations and uncorrected technical or procedural failures.

In March 2026, ICE published a revised Fact Sheet on Form I-9 inspections that drastically expanded the list of errors classified as substantive and increased liability for employers.

Q: I inherited a mess of I-9 documentation. How do I go about correcting it, or do I just move forward correctly?

Rather than wait for a government inspection before evaluating your organization’s compliance, conduct a proactive internal I-9 audit and correct existing deficiencies in accordance with ICE guidance to reduce the risk of future liability based on the inherited I-9 problems.

Here are some high-level guidelines for correcting errors that an audit might uncover in various sections of the I-9:

• Missing I-9s: Obtain I-9s for current employees who are missing them.
• Section 1. Instruct an employee on how to correct errors or omissions in Section 1.
• Section 2 and Supplement B. Make corrections to Section 2 and Supplement B, Reverification and Rehire.Work through each incorrect I-9, consulting USCIS resources for guidance on how to correct each error. 
• New I-9. If there are so many errors that using the original I-9 is prohibitive, have the employee complete and sign a new I-9 using the current date and the latest edition of the form. Enter the employee’s correct hire date in Section 2 and verify the employee’s employment eligibility documents. Staple the original Form I-9 to the new I-9, write a memo explaining why there are two Forms I-9 and attach it to the I-9s.
• Missing Photocopies. If you retain photocopies of identity and work authorization documents and the audit reveals that some photocopies are missing, ensure consistency moving forward in implementing the document copy policy. Only if enrolled in E-Verify, ask employees for copies of that require a photo match.
• Reverification. Reverify any employee who needed to be reverified but was not. Use the current date when reverifying, and do not backdate.

In addition to conducting an internal audit, you can correct deficient I-9 processes by:

• Reviewing onboarding, reverification, and document retention procedures.
• Confirming that any electronic Form I-9 systems comply with current Department of Homeland Security requirements.
• Training HR personnel responsible for completing and maintaining Forms I-9.
• Establishing a response plan for an ICE NOI or other worksite enforcement action.

Q: Can you correct dates on a Form I-9 if errors are discovered during a self-audit? For example, if an employee signed Section 1 after their first day of employment, should you correct the date?

For errors discovered in Section 1 during an internal I-9 self-audit, including those related to dates, only the employee, and not the employer, may make corrections. To fix an error, have the employee:

• Draw a line through the incorrect information;
• Enter the correct or omitted information; and
• Initial and date the correction or omitted information (they must never backdate).

Employees needing assistance to correct or enter omitted information in Section 1 can have a preparer and/or translator help with the correction or omitted information and complete Supplement A, Preparer and/or Translator Certification for Section 1, as appropriate. The employee, preparer or translator should:

• Draw a line through the incorrect information and enter the correct information or note the omitted information;
• Have the employee initial and date the correction or omitted information if able; and
• Initial and date the correction or omitted information next to the employee’s initials.

For errors in Section 2 and Supplement B, Reverification and Rehire, the employer makes corrections.Work through each incorrect I-9, consulting USCIS resources for guidance on how to correct each error. When making corrections:

• Draw a line through the incorrect information.
• Enter the correct or omitted information and ensure it clearly shows that a change is a correction.
• Use a different-colored ink from what was used on the form originally.
• Ensure changes are initialed with the first initial and full last name of the person making corrections and dated with the current date.
• Never backdate or conceal any changes made on the Form I-9, such as by erasing text or using correction fluid.

Go deeper on I-9 compliance 

Watch our on-demand The Next Wave of Immigration Compliance – Preparing for Increased Enforcement webinar to hear immigration law attorneys Nathalie Fassie and Tommy Jones of Fragomen, Del Rey, Bernsen & Loewy review the latest developments in employment eligibility verification and workplace immigration compliance.