Frequently Asked Questions About How to Help Weather a Potential I-9 Enforcement Surge

We recently hosted a webinar, “How to Weather a Potential I-9 Enforcement Surge", and received numerous insightful questions from attendees. To provide further clarity, we’ve compiled this FAQ to help address key I-9 concerns for employers. 

When doing an audit, what do you do if you realize you don’t have an employee's I-9 on file?

If an employer is missing Form I-9s for active employees, complete a new Form I-9 on the current form as soon as possible. In doing so, the employee and employer representative should use “current” signature dates, meaning they should enter the date upon which they are actually signing their respective sections of the new I-9. However, the “employee’s first day of employment” field should indicate the original employment start date. Since this will make the I-9 seem late, the government also recommends attaching an explanatory note which indicates that upon review you discovered an I-9 was missing for the employee and made efforts to correct the issue by completing a new I-9.*

Mergers and Acquisitions/Divestiture - What happens to I-9 Forms?

When an employer acquires a separate entity, they have 2 options under the law: (1) treat all acquired employees as new hires and complete a new I-9 for every individual; or (2) treat all acquired individuals as employees who are continuing in their uninterrupted employment status and retain the previous I-9s for each acquired employee. 

Similarly, when an employer divests a separate entity, the acquiring or surviving entity generally assumes the I-9 responsibility (and liability) for all of the employees that will continue to work at the organization. As with acquisitions, the company would need to decide whether it wants to do new I-9s for all of its employees or assume the I-9s that were previously completed.* 

How quickly do we need to produce I-9 forms during an audit?

When Immigration and Customs Enforcement (ICE) conducts an I-9 inspection, employers are typically given 3 business days to produce the requested I-9 forms.* In some cases, an employer may be able to obtain an extension, but this is never guaranteed. Failure to provide requested I-9 forms within the required time frame can result in civil monetary penalties for each Form I-9 that was not delivered to ICE within the required timeframe.

What is the lookback period for an I-9 audit?

There is no specific "lookback period" in the sense of a limitation on which I-9 forms ICE can request during an audit. ICE can request I-9 forms for current employees and former employees, whose forms are still within the I-9 retention period.

I-9 retention rules state that once an employee has been terminated, you must retain the Form I-9 for the later of three years after the date of hire or one year after employment has been terminated.*

What can trigger an ICE audit?

Several factors can trigger an ICE I-9 audit. These might include the following:*

Tips and Complaints: ICE may initiate an audit based on tips or complaints alleging non-compliance.

Industry Factors: Certain industries with a history of employing unauthorized workers may be more likely to receive an I-9 inspection notice. 

Enforcement Priorities: Changes in immigration enforcement priorities can lead to increased audits in specific geographic areas.

Interagency Referrals: Investigations from other government agencies that impact or touch upon hiring may refer leads to ICE. 

Random Audits: ICE conducts audits randomly to ensure compliance across various industries.

What happens if you discover missing or incorrect Form I-9s during an audit?

If you discover missing or incorrect Form I-9s during an internal Form I-9 audit, it's important to take immediate, good-faith corrective action. For missing forms, you should complete a new I-9 as soon as possible, noting the reason for the delay. For incorrect forms, employers may make appropriate corrections following USCIS guidelines.

Do we need to keep copies of supporting documents (e.g., driver's license, passport)?

It depends. Under the regulations, an employer may (but is not required to) photocopy document(s) presented by an employee for the purpose of complying with the verification requirements. If an employer has a policy to photocopy documents, it must do so without regard to an employee’s citizenship status, national origin, or immigration status. 

However, if an employer participates in E-­Verify and the employee presents a document which requires photo matching (currently the U.S. passport and passport card, Permanent Resident Card (Form I-­551) and the Employment Authorization Document (Form I-­766)), the employer must retain a photocopy. 

In addition, employers virtually examining Form I-9 documentation under the government’s Optional Alternative Procedure, must retain a clear and legible copy of the documentation examined (front and back if the documentation is two-sided).*

What are the penalties for I-9 non-compliance?

Penalties for I-9 non-compliance can be significant and fall into two main categories: paperwork violations and knowingly hiring or continuing to employ unauthorized workers.

Paperwork Violations: Fines range from $288 to $2,861 per form (as of 2025), depending on the severity and frequency of the errors. This includes missing forms, incomplete sections, or not completing forms on time.

Knowingly Hiring or Continuing to Employ Unauthorized Workers: These violations carry much steeper penalties, ranging from $716 to over $28,619 per worker (as of 2025), with possible criminal charges as well.*

How can Equifax help with our Forms I-9?

Equifax offers a more comprehensive suite of capabilities designed to help employers with Form I-9 and E-Verify requirements:

Electronic I-9 Management: Helps streamline the I-9 process with digital workflows, real-time validation, and error-checking to help you better ensure your forms are completed more accurately and timely.

E-Verify Integration: Helps you integrate your Forms I-9 more seamlessly with the E-Verify system which can help reduce data entry mistakes and make  program management easier.

Historical I-9 Conversion and Remediation: Consolidate all of your historical I-9s in one platform, help identify potential errors and omissions, and allows you to remediate mistakes where possible using smart tools.  

I-9 Completion Outsourcing: In-person and virtual document inspection options by trained agents, which can be especially useful for remotely hired employees. 

Audit Readiness and Reporting: Provides audit trails, dashboards, and reporting tools to help employers prepare for and respond to government audits.

Does using E-Verify impact the likelihood of being audited?

Participation in E-Verify should not inherently increase the likelihood of a government audit. As noted above, Form I-9 inspections typically result from various factors such as employee complaints, tips, prior violations, or industry-specific initiatives, which are completely unrelated to E-Verify use. 

Employers who use E-Verify are generally viewed as making a good-faith effort to comply with employment eligibility verification requirements. However, participation in the program does not exempt an employer from Form I-9 audits or associated penalties.*

*Source: U.S. Citizenship and Immigration Services

The information provided is intended as general guidance and is not intended to convey any tax, benefits, or legal advice. For information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel.  Equifax Workforce Solutions provides services that can help employers reduce their compliance risks. Details on our provision of these services and related support will be contained in your services agreement. Links to sources may be to third party sites. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.