Blogs

The real remote hiring challenge: Proving I-9 compliance

8/3/26

By: Scott Hroza

Federal immigration enforcement remains a significant concern for employers, making it critical to establish a defensible I-9 compliance program before an audit notice arrives. While DHS-authorized remote document examination procedures have made remote hiring more efficient, employers must still be prepared to demonstrate that employment eligibility verification was completed properly and consistently. In today’s enforcement environment, the question is often not whether a Form I-9 was completed, but whether the employer can prove that its verification process complied with applicable requirements. A strong compliance program should address common Form I-9 mistakes, remote verification and E-Verify obligations, and the risks associated with using authorized representatives.

Employers should adopt proactive compliance strategies to remain consistent with U.S. Immigration and Customs Enforcement (ICE) guidance and the Immigration and Nationality Act (INA). These strategies include:

1. Conduct regular internal audits;
2. Maintain accurate and compliant records;
3. Adhere to proper E-Verify practices (for enrolled employers);
4. Train Human Resources and Compliance personnel; and
5. Consult legal counsel as needed.

Common Form I-9 deficiencies employers discover in audits

Employers should review Form I-9, Employment Eligibility Verification, promptly after completion to avoid common mistakes. Some common mistakes include, but are not limited to:

• The employee not entering their name or A-number/USCIS Number;
• The employee not signing or dating the attestation;
• The employee not completing Section 1 by the first day of employment;
• The employee not checking one of the boxes indicating that they are a citizen or noncitizen national of the United States;
• The employer does not enter acceptable List A documents, or acceptable List B and List C documents;
• The employer does not enter the date employment began;
• The employer does not complete Section 2 by the third business day after the date the employee began employment.

To avoid these mistakes, employers should conduct internal I-9 audits to ensure ongoing compliance with the employer sanctions provision of the Immigration and Nationality Act (“INA”). An employer may choose to review all Forms I-9 or a sample of Forms I-9 selected based on neutral and non-discriminatory criteria. Employers should be aware that penalties for violations of the employer sanctions provision and the anti-discrimination provision of the INA may be imposed even if an internal audit has been performed.

Before conducting an audit, employers should consider how they will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process. Employers should develop a transparent process for interacting with employees during any internal audit. This includes informing employees, in writing, that the employer will conduct an internal audit of Forms I-9, explaining the scope and reason for the internal audit, and stating whether the internal audit is independent of or in response to a government directive. When a deficiency is discovered in an employee’s Form I-9, the employer should notify the affected employee, in private, of the specific deficiency.

If errors are found in Section 1, the employee should make the correction by drawing a line through the incorrect information, entering the correct or omitted information, and initialing and dating the correction.

The same correction method applies to errors in Section 2 and Supplement B. However, those corrections must be made by the employer, not the employee.

Remote verification requirements and E-Verify obligations

Employers who participate in E-Verify in good standing are qualified to remotely examine their employees’ documentation using a DHS-authorized alternative procedure at their E-Verify hiring sites. If an employer chooses to offer the alternative procedure to new employees, it must do so consistently for all employees at the applicable E-Verify hiring site. However, an employer may choose to offer the alternative procedure for remote hires only and continue to apply physical examination procedures to employees who work onsite or in a hybrid capacity, so long as the practice is not adopted for a discriminatory purpose and employees are not treated differently based on citizenship, immigration status, or national origin. To examine an employee’s documentation remotely, the employer must be enrolled in good standing in E-Verify and complete the following steps:

• Examine copies of Form I-9 documents, including the front and back if the document is two-sided, or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
• Conduct a live video interaction with the individual presenting the document(s) to ensure that the documentation reasonably appears to be genuine and related to the individual;
• Indicate on the Form I-9, by completing the corresponding box, that an alternative procedure was used to examine documentation to complete Section 2 or for reverification in Supplement B, as applicable; and
• Retain a clear and legible copy of the documentation, including the front and back if the documentation is two-sided.

In the event of a Form I-9 audit by a federal government official, make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

Risks of using authorized representatives

Many employers that do not qualify for or choose not to use the DHS-authorized remote examination procedure rely on authorized representatives to complete Section 2 for remote hires. While this practice is permitted, it does not shift liability from the employer. Any mistakes made by the authorized representative are treated as the employer’s mistakes, making proper training and oversight essential. The following are among the most common compliance errors associated with the use of authorized representatives:

• Not examining documents in the employee’s presence (the authorized representative must physically see the original documents, either in person or over a qualifying live video call);
• Having one person examine documents and a different person sign Section 2 (the same individual who examines the employee’s documents must complete the certification block, sign, and date Section 2);
• Not completing Section 2 within three business days (the authorized representative must complete Section 2 no later than three business days after the employee’s first day of work);
• Requesting specific documents from the employee (the authorized representative cannot ask for a specific document, cannot reject documents that reasonably appear genuine, and cannot require more or different documents than the minimum required); and
• Assuming the authorized representative absorbs the liability (the employer, not the authorized representative, is legally responsible for any I-9 violations).

In today’s enforcement environment, compliance is no longer measured solely by whether an employer completed a Form I-9. Employers must also be prepared to demonstrate how verification was conducted, who performed it, what procedures were followed, and whether those procedures were applied consistently. Regular audits, proper training, careful recordkeeping, and well-documented remote verification practices can help employers defend their processes when ICE comes knocking.

For more information on this topic please contact Scott Hroza at scott.hroza@fmglaw.com or your local FMG attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.