Can Your I-9 System Handle an ICE Audit? How to Mitigate the Risks

Employers around the country shuddered in 2025, when U.S. Immigration and Customs Enforcement (ICE) released video that went viral of a raid at a Hyundai plant in Georgia. Although the target investigation wasn’t Hyundai itself but the contractor that was supplying workers, the image of the car manufacturer was seared into the public’s brain. 

That type of reputational damage is just one part of what employers are eager to avoid in this era of increased immigration enforcement in the second administration of President Donald Trump, said John Mazzeo, immigration counsel with Seyfarth in Washington, D.C., during SHRM26 in Orlando. The other very real impact is financial, as penalty amounts increase and violations that will yield a fine become more numerous. 

Mazzeo and attorney John Fay, who is director of product strategy at Equifax Workforce Solutions, laid out the current stakes related to the Form I-9, which verifies employees’ identity and authorization to work in the U.S. At two different SHRM26 sessions, Mazzeo and John Fay offered practical advice for employers looking to focus on compliance and mitigate employment eligibility-related risks.

Credential: U.S. Employment Immigration

Enforcement Threats

Several factors are making the I-9 violation landscape riskier, the attorneys said. These include: 

Recategorization of technical violations:  ICE’s reclassification in April of many technical or procedural I-9 violations as substantive violations means a much greater chance of a financial penalty for smaller I-9 mistakes such as a missing date of birth or date of hire, Mazzeo said during his SHRM26 session. 

Fewer settlements: “What we're seeing nationwide ... is a decreased incentive to settle cases,” said Mazzeo, who previously worked as a trial attorney at ICE. Attorneys at the agency used to have authority to settle cases with up to a 10% reduction in the penalty. “Evidently that rule is no longer in effect, and the trial attorneys are being pushed to take cases to a hearing,” he said.

E-Verify crackdown: U.S. Citizenship and Immigration Services (USCIS) is increasing its enforcement efforts tied to E-Verify, its electronic system for verifying employment eligibility. “I’ve never seen more E-Verify desk reviews than I do now,” Mazzeo said of USCIS’s practice of checking on compliance of individual E-Verify users. “Even more so, I’ve never seen USCIS push for termination of [E-Verify] account[s] more than I have now.” Termination of an employer’s E-Verify account can upend their operations if they can no longer check employment eligibility electronically. 

Heightened state regulations: Twenty states require employers to participate in E-Verify to maintain a business license. An E-Verify account termination stops an employer from being able to do business in those states. Some states, such as Florida and North Carolina, have ramped up state enforcement on employment eligibility. 

What to Do to Prepare for a Possible I-9 Inspection 

There are a few ways for employers to get their houses in order in advance of an I-9 inspection by ICE, Mazzeo and Fay said. 

Verify electronic I-9 compliance: Many employers have moved to using an electronic Form I-9, but not everyone’s system is creating the audit trail that ICE requires. For example, sending documents for electronic signature through providers such as Docusign may not provide sufficient audit trails, Fay said during his session. 

"In the past, the American Immigration Lawyers Association has expressed some concern about using DocuSign for I-9 purposes because the audit trail is not baked within the whole I-9 process. It doesn't capture when the employee logged in. It doesn't capture when they exactly entered information," Fay said.  "So if you're concerned about or planning for DocuSign I-9s, I would check with your counsel." 

Correct mistakes: Make an effort to correct any errors you find on I-9s in the course of doing business. Follow USCIS best practices for making and initialing changes on existing forms, or attaching a new form, if necessary, with a memo stating why. Prioritize corrections on the most consequential violations, such as missing I-9s, I-9s that required reverification but were not reverified, missing signatures, and missing document copies if the I-9 was processed through E-Verify, Fay said.

Purge I-9s periodically: Most electronic systems will do this automatically, but if not, it can be best to purge I-9s that are no longer within the required retention period, that is, within three years of hire or one year of the end of employment, whichever is later. “If you have an electronic I-9 system, you should have a very good business reason if you don't have an automatic purge,” Mazzeo said during his session. The logic there is that employers don’t want to risk turning over errant I-9s that are not within the retention period for inspection by ICE.

Checklist: I-9 Audit — Mistakes to Look For and Correct

Best Practices for Internal I-9 Audits

Many HR professionals may want to be proactive in auditing their I-9s before ICE comes to inspect them. Mazzeo provided some core tenets for such audits that employers should consider, including: 

Use legal counsel for any audit: While it comes with additional costs, using legal counsel for any internal I-9 audit an employer undertakes can help ensure that efforts to remediate I-9 issues remain privileged. “If you do an internal audit yourself, you're not protected by privilege. So that means any email you send to your supervisor, or a person within your organization who did I-9s before you, that’s all coming out in discovery,” Mazzeo said. 

Start with a sample: Auditing a sample of 10% of your workforce can give you an idea of what kind of remediation you will need to undertake, Mazzeo said. “The errors you’re going to catch in a sample are going to be at scale,” he said. “That allows you to say, let’s see the failure rate and then build out a plan.” 

Approach with good faith: Any time an employer can show a good faith effort to comply will help them during an I-9 inspection, both attorneys said. “If you can show you have taken the time, the energy, the cost to review records, make corrections, add notes, explain what you’re doing in a transparent manner makes it easier for someone to say, ‘they’re following the law, trying to do everything they can, so I’ll let them pass and go look at another employer,’” Fay said. 

Indeed, “the agency is going to look more favorably upon someone who went and did an audit and took care of their house than someone who just didn't,” Mazzeo added.