US Employers Should Prepare Now for Increased Form I-9 Enforcement

Advance planning is increasingly important as the US administration considers expanding worksite enforcement and administrative inspections.

Recent comments by White House Border Czar Tom Homan provide a significant indication that the administration is considering a substantial expansion of immigration worksite enforcement, including administrative Form I-9 inspections.

In a July 2026 interview, Homan said worksite enforcement should be a major part of the administration’s strategy, described a plan under development to process large volumes of Form I-9 inspections, and discussed referring apparent administrative and criminal violations to Homeland Security Investigations (HSI). He also emphasized employer accountability and described coordination with the US Department of Justice, Internal Revenue Service, Department of Labor, and Social Security Administration.[1]

Homan’s comments do not establish a new inspection procedure or constitute binding Immigration and Customs Enforcement (ICE) guidance, nor has the particular contractor-based model he discussed been publicly adopted as an ICE program. His remarks nevertheless warrant attention as they are consistent with ICE’s current public description of Form I-9 inspections as a component of HSI’s worksite-enforcement program and because the proposed model is expressly intended to increase inspection capacity.[2]

WHY EMPLOYERS SHOULD ACT BEFORE RECEIVING A NOTICE OF INSPECTION

An administrative Form I-9 inspection generally begins when ICE serves a Notice of Inspection requiring the employer to produce Forms I-9 and related records. Employers ordinarily receive at least three business days’ notice before production is required.[3]

Three business days may not be enough even to collect the requested data. The task can be particularly difficult for employers with large or decentralized workforces, multiple employing entities or locations, paper and electronic records maintained in different systems, legacy records from acquired businesses, vendor-hosted records, incomplete termination data, or limited personnel with access to relevant platforms.

Employers should not assume that ICE will grant an extension. Advance planning should include a protocol for producing the requested records within the original three-business-day period if ICE declines to extend the deadline. That protocol should identify all record repositories, establish vendor and internal escalation paths, designate personnel who can retrieve and export records, and provide for rapid reconciliation of Forms I-9 against HR and payroll rosters.

A POST-NOTICE REVIEW IS NOT AN OPPORTUNITY TO REMEDIATE

Employers should complete internal review and remediation before receiving a Notice of Inspection. Corrections undertaken after service of the notice generally do not cure violations existing at the time of inspection and therefore do not remove liability. Inspection instructions also typically caution employers against altering the Forms I-9 being produced.

Employers generally should not revise, supplement, recreate, or replace forms during the production period. Any action concerning the inspected records should be undertaken only after consultation with counsel and preserve the original records and a complete account of what was done and why.

Improvised post-notice corrections may create additional problems if they obscure the original record, alter an electronic audit trail, produce inconsistent versions, or appear to involve backdating or fabrication. ICE’s current inspection guidance identifies evidence of fraud in Form I-9 completion, including backdating, as a circumstance weighing against issuance of a warning notice.[4]

This is distinct from the statutory correction period that may arise later if ICE formally issues a Notice of Technical or Procedural Failures. Only deficiencies that ICE classifies as technical or procedural are eligible for correction after formal notice for at least 10 business days. An uncorrected technical or procedural failure then becomes a substantive violation.[5]

MARCH 2026 GUIDANCE SUBSTANTIALLY NARROWED TECHNICAL VIOLATIONS

ICE revised its Form I-9 inspection guidance in March 2026, substantially narrowing the category of deficiencies it treats as technical or procedural. The revised guidance reclassifies as substantive most deficiencies that prior ICE guidance had identified as technical or procedural. While the underlying statutory and regulatory completion requirements did not change, ICE’s enforcement classification materially reduced the practical availability of post-inspection remediation.[6]

Under the revised framework, many failures involving required employee attestations, signatures, dates, employer certifications, document information, preparer or translator information, and reverification are treated as substantive. Classification may depend on the Form I-9 edition, the field involved, and whether information elsewhere on the form supplies or cures the omission. Employers therefore should not assume that an apparently minor paperwork error will qualify for the 10-business-day correction process.

The practical consequence is a material increase in potential overall liability. Many violations that previously may have been treated as technical or procedural may no longer be amenable to remediation that eliminates liability. Deficiencies that remain technical or procedural also require attention as they can become substantive if not timely corrected after notice. The reclassification therefore raises the stakes for identifying and addressing all Form I-9 violations before an inspection.

The March 2026 document is agency enforcement guidance rather than a statute or regulation, but it reflects ICE’s current inspection position and should guide present compliance planning.

PREEMPTIVE CORRECTION CAN END CONTINUING VIOLATIONS

Many Form I-9 paperwork violations are treated as continuing violations until corrected or until the employer is no longer required to retain the form. Correcting a deficiency does not erase historical liability, but it may end the continuing violation and cause the five-year limitations period under 28 USC § 2462 to begin running. A statute-of-limitations defense may therefore become available if the government does not timely file an OCAHO complaint after the violation has been cured.[7]

The analysis differs for a violation based solely on untimely completion. OCAHO has described such a timeliness violation as complete, or “perfected,” once the applicable deadline passes; the employer cannot retroactively cure the fact that completion was late.[8]

These distinctions reinforce the value of preemptive remediation. Employers should identify deficiencies, correct continuing violations transparently where possible, and preserve evidence of the date and manner of each correction. The classification and limitations analysis is fact-specific and should be assessed with counsel.

CONDUCT A COUNSEL-DIRECTED INTERNAL AUDIT

Employers should conduct a structured internal audit before any government inspection begins. The audit may cover all Forms I-9 or a neutral and appropriately designed sample, depending on workforce size and risk.

Joint ICE and DOJ guidance recommends neutral, nondiscriminatory selection criteria, consistent correction standards, and a transparent process for employee communications. The guidance also makes clear that an internal audit does not insulate an employer from liability.[9]

A comprehensive review should determine whether:

• Every active and retained former employee for whom a Form I-9 is required has a form;
• Forms I-9 reconcile with HR, payroll, and termination rosters;
• Section 1 and Section 2 were timely and properly completed under the rules applicable at the time;
• Required signatures, attestations, dates, document information, and employer information are present;
• Reverification was completed when required and was not conducted when prohibited;
• Automatic extensions, receipts, temporary evidence, and remote document examination were handled correctly;
• Acquired, rehired, transferred, and remote employees were treated consistently; and
• Electronic records, supporting documents, metadata, and audit trails can be retrieved promptly.

CORRECT DEFICIENCIES TRANSPARENTLY AND BEFORE NOTICE

Corrections should preserve the original record: employers should not erase information, use correction fluid, overwrite electronic entries without a permanent audit trail, or backdate a form. Employees ordinarily should correct Section 1; employers should correct Section 2 and the portions used for reverification or rehire.

Where substantial information is missing, the appropriate corrective method may involve completing the relevant section on a new form and attaching it to the original with a signed and dated explanation.[10]

Not every violation can be cured in a way that eliminates historical exposure. Even so, timely correction can bring the employer into present compliance, end a continuing violation, start a potentially relevant limitations period, prevent recurrence, and improve the employer’s ability to demonstrate a serious compliance program.

BUILD AND TEST A THREE-BUSINESS-DAY PRODUCTION PROTOCOL

A production-readiness protocol should address the following:

• Immediate escalation. Reception, security, local management, and HR personnel should know whom to contact upon receipt of a Notice of Inspection, subpoena, or warrant.
• Legal review. Counsel should confirm the deadline, scope, covered employer entity and locations, and whether an extension request is appropriate.
• Record inventory. The company should maintain a current map of paper repositories, electronic systems, vendor platforms, legacy databases, and acquired-company archives.
• Electronic access. More than one trained individual should be able to export Forms I-9, document copies, metadata, audit trails, and requested electronic summary files.
• Roster reconciliation. HR and payroll should be able to generate reliable current and former employee lists and reconcile them against the forms being produced.
• Quality control. The team should verify that the production covers the correct entity and period and does not inadvertently include unrelated personnel records.
• Extension contingency. The company should identify what will be produced by the original deadline if an extension is denied and how any remaining records will be prioritized and documented.
• Preservation. Relevant records, logs, emails, and audit trails should be preserved immediately, with routine destruction suspended where appropriate.
• Communication control. Only designated personnel should communicate with ICE or make substantive representations regarding company practices.

Employers should test the protocol through a tabletop exercise. A test often reveals that records assumed to be readily available cannot actually be exported, reconciled, or produced within three business days.

REVIEW ELECTRONIC FORM I-9 SYSTEMS

Using a commercial or proprietary Form I-9 platform does not guarantee compliance. ICE and DOJ state expressly that the employer remains responsible for ensuring that its software and processes comply with federal requirements.[11]

Employers should test whether the system preserves all original and corrected information; creates a secure, permanent, time-stamped audit trail; identifies each user and action; accepts all permissible documents and receipts; supports lawful reverification and automatic-extension rules; and can produce forms, document copies, audit trails, process documentation, and electronic summary files on demand.

Federal regulations require electronic systems to maintain integrity, accuracy, reliability, security, indexing, retrieval capability, and permanent records of access and changes.[12]

REVIEW REVERIFICATION, E-VERIFY, AND REMOTE-HIRE PRACTICES

Employers should distinguish expiration of employment authorization from expiration of a document that does not require reverification. Systems should account for automatic extensions and should not generate unnecessary document demands based on an expiring identity document or Permanent Resident Card.

E-Verify does not replace Form I-9 compliance. Employers should confirm timely case creation, private and consistent handling of mismatches, and the absence of adverse action while an employee timely contests a mismatch.

Employers using DHS’s optional alternative procedure for remote document examination should confirm continued eligibility and compliance with the associated E-Verify, live-interaction, document-copying, annotation, and retention requirements.

ASSESS CONTRACTORS, STAFFING FIRMS, AND LABOR PROVIDERS

Homan’s comments described an enforcement strategy extending beyond administrative paperwork and focused on employer accountability, financial investigations, human trafficking, forced labor, and related criminal conduct. Employers should review staffing, subcontracting, and vendor relationships, particularly where large numbers of workers perform services at company facilities or under company supervision.[13]

Relevant agreements should allocate responsibility for employment-verification compliance, require cooperation with investigations, provide appropriate audit and access rights, and address notice, indemnification, and remediation. Contract provisions do not protect a company that has actual or constructive knowledge that unauthorized labor is being supplied. At the same time, employers must not treat national origin, accent, appearance, or rumor as evidence of unauthorized status.

MAINTAIN NONDISCRIMINATORY PRACTICES

An intensified compliance program must be applied consistently. Federal law prohibits citizenship-status and national-origin discrimination, unfair documentary practices, and retaliation in the Form I-9 and E-Verify processes.

Employers should not selectively audit employees perceived as foreign, request particular or additional documents, improperly reverify employees, or take action based solely on an unresolved Social Security number or E-Verify mismatch.[14]

UNDERSTAND THE POTENTIAL CONSEQUENCES

Form I-9 liability is not limited to employers that knowingly hire unauthorized workers. ICE may pursue substantive paperwork violations, uncorrected technical or procedural failures, knowing-hire violations, and continuing-employment violations.

Exposure may include civil penalties of up to $2,861 assessed per form or worker, Notices of Suspect Documents or Discrepancies, follow-up inspections, operational disruption, workforce disruption, government-contracting consequences, and disclosure of broader payroll, tax, wage-and-hour, document-fraud, subcontracting, or exploitation issues.[15]

The most significant exposure often arises from systemic process failures rather than isolated mistakes: missing forms, late completion, unreliable electronic signatures, incomplete reverification, inconsistent document-copying practices, unauthorized remote review, or recurring software defects. ICE’s penalty methodology considers the proportion of forms containing substantive violations or uncorrected technical or procedural failures when establishing a base penalty amount.[16]

THE PRACTICAL TAKEAWAY

While the contractor-based inspection model described by Homan remains a proposal rather than an announced ICE program, the broader enforcement signal is nevertheless clear: the administration is considering ways to conduct more Form I-9 inspections and refer apparent administrative and criminal violations for further investigation.

Employers should use the period before receiving a Notice of Inspection to audit and remediate their Forms I-9, end continuing violations where possible, test electronic systems, train key personnel, review labor-provider relationships, and prepare to collect and produce records within three business days if ICE declines to grant additional time.

Once a Notice of Inspection has been served, the opportunity for meaningful preemptive remediation has largely passed and any subsequent corrective action must be carefully coordinated with counsel.

HOW MORGAN LEWIS CAN HELP

Our team can help employers undertake small- and large-scale counsel-directed Form I-9 reviews using practiced document review specialists working under lawyer supervision.

This approach combines efficient review of high volumes of records with consistent issue coding, quality control, and escalation of higher-risk questions for legal analysis. It can help employers identify and remediate deficiencies before an inspection, preserve privilege where possible, and prepare for rapid production if ICE serves a Notice of Inspection.