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Employment Eligibility, Recordkeeping, and Immigration Compliance: A Guide for Employers Practical Steps to Protect Your Business

With a recent uptick in I-9 audits and workplace enforcement actions by U.S. Immigration and Customs Enforcement (ICE), employers are facing renewed scrutiny of their hiring and recordkeeping practices. Immigration is a topic that can generate strong opinions, but for employers, the focus needs to remain on compliance, preparedness, and protecting the rights of their employees and the interests of their organization. Regardless of your industry or the size of your team, there are several key obligations and best practices that every employer should understand when it comes to immigration and employment law.

Verifying Employment Eligibility

Every employer in the United States is required to verify that all new hires, including U.S. citizens, are legally authorized to work. This is done by completing Form I-9, Employment Eligibility Verification.

A Form I-9 is required for every employee hired after November 6, 1986, regardless of citizenship or immigration status. The employee must complete Section 1 on or before their first workday, and the employer must complete Section 2 within three business days of the start date.  If the employee does not provide the required documentation within three business days of starting work, the employer must terminate employment until the documents are produced. Continuing to employ someone without a completed Form I-9 is a violation of federal law.

Employers must inspect original documents that establish identity and work authorization for both citizens and non-citizens. Employers must view the original document- Copies are not acceptable unless the document is electronically issued (e.g., an electronic I-94).

Recordkeeping Requirements

Employers must retain Form I-9 for three years after the date of hire or one year after the date employment ends, whichever is later. For practical purposes, employers should never discard I-9 forms for active employees—even if more than three years have passed—since the full retention period isn’t triggered until after separation. I-9 forms must be made available for inspection by authorized government officials upon request.

As a best practice, I-9 forms should be stored separately from personnel files to protect sensitive data and ensure only relevant documents are viewed during audits. This minimizes the risk of disclosing unrelated employment or medical information.

While not required by law, many employers choose to copy the identification documents presented during I-9 verification. If you do, you must do so consistently for all employees and store the copies with their I-9 form.

• If an employer begins retaining copies of supporting documents, it does not need to apply retroactively to existing I-9s. However, from the effective date forward, copies must be retained consistently for all new hires.

• If an employer chooses to stop retaining copies of supporting documents, the change must be applied consistently for all new hires from the effective date forward. Existing copies do not need to be destroyed, but selective retention after the policy change may create compliance concerns.

In both cases, document the decision in a dated internal memo and keep it with your I-9 records.

The I-9 Employment Eligibility Verification form and it's instructions can be found at: https://www.uscis.gov/i-9-central

When Should a New Form I-9 Be Completed?

Generally, a new I-9 is only required when a new employment relationship begins. However, certain situations may also require a new form, such as:

• Rehiring an employee more than three years after the original I-9 was completed.

• Rehiring an employee within three years if their original authorization document has expired and reverification is not possible.

• Major name changes or documentation discrepancies may also prompt a new I-9, especially if the employee’s legal status has changed (e.g., transition from work visa to permanent resident).

• If an internal audit reveals that a prior I-9 was completed improperly or is missing required fields, a new, corrected form may be the best course of action (with appropriate notation and retention of the old form).

E-Verify: Optional or Mandatory?

E-Verify is a federal electronic system that compares information from Form I-9 with records from the Department of Homeland Security and the Social Security Administration.

E-Verify is voluntary for most private employers, but mandatory for federal contractors and in some states or local jurisdictions.

Participation in E-Verify does not replace the need for Form I-9, and it must not be used to screen applicants before hire.

What to Do if ICE Visits Your Workplace

U.S. Immigration and Customs Enforcement (ICE) may conduct audits or enforcement actions related to immigration compliance. It’s important to be prepared.

Have a response plan. Designate who in your organization is authorized to communicate with ICE and train managers not to provide access or information without proper protocols.

• Stay calm and respectful. Interactions with enforcement agents should be professional. Avoid obstructing or interfering with the process, and direct communication through your designated contact person.

• Request identification

• Ask for a warrant

Ask for legal documentation. If ICE seeks to enter non-public areas or seize documents, request to see a warrant signed by a judge. Administrative warrants (Form I-9 Notices of Inspection or ICE subpoenas) do not grant access to private areas or authorize the seizure of records without consent.

Immediately notify your immigration or employment attorney. They can advise you in real time and may speak directly to ICE on your behalf.

Take notes of:

• Names and badge numbers of ICE agents

• The time and date of the visit

• What was said and any documents provided or requested

Know the Types of ICE Actions

 Avoiding Discrimination

• Do not require additional or different documents than what is listed on the Form I-9 instructions.

• Do not reject valid documents because of a person’s national origin or citizenship status.

• Reverification is only required for documents with expiration dates; U.S. citizens and lawful permanent residents (green card holders) do not need to be reverified.

Understanding the Employer’s Role: What You Are (and Aren’t) Responsible For

What You Are Responsible For:

• Completing and retaining Form I-9 for every employee.

• Reviewing acceptable documents that appear to be genuine and relate to the person presenting them.

• Re-verifying work authorization for employees whose temporary documents expire.

• Responding appropriately to official notices from the government, such as Social Security mismatch letters or ICE audit notices.

• Ensuring consistent treatment of all employees during the hiring and verification process.

What You Are Not Responsible For:

• You are not required to be an expert in document authenticity. If documents appear reasonably genuine and relate to the person, you may accept them.

• You are not required (or permitted) to track an employee’s immigration status over time unless reverification is legally required.

• You can’t ask certain employees for extra documents based on assumptions about their citizenship or immigration status.

• You are not an enforcement agent. It is not your role to report employees you suspect may be undocumented. If you suspect someone is undocumented, consult legal counsel before taking any action.

In short: Your responsibility is to follow the law, document properly, treat everyone equally, and maintain compliance—not to act as an immigration enforcer or make assumptions about someone’s background.

Final Thoughts

Immigration and employment regulations can be complex, but a clear, consistent, and well-documented approach to eligibility verification and recordkeeping helps protect your organization and your employees. It's also wise to periodically review your I-9 practices and conduct internal audits to ensure compliance.

And while we all hope never to face a surprise visit from enforcement agencies, having a plan in place—and making sure your staff knows what to do—can make a significant difference in responding effectively and lawfully.

If your organization needs help developing an I-9 policy, conducting an internal audit, or training hiring managers on workplace enforcement procedures, HR One is here to help.

Have questions? Contact us!

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Employers should reach out to HR One for guidance on specific situations or questions related to immigration compliance and employment practices.