Completing Form I-9 and Responding to a Notice of Inspection: A Practical Checklist

Immigration > Employer Compliance and Worksite Enforcement | Published 26 July 2024 - Updated 26 November 2024 | UpLaw - uplaw.us

How to Use This

Two operations, run independently. Part A is the routine — every hire, every day. Part B is the emergency — starting the hour a notice of inspection is served. Parts C through F are the supporting procedures.

Statutory anchors: verification and knowing-employment at 8 U.S.C. § 1324a; discrimination and document abuse at 8 U.S.C. § 1324b; document fraud at 8 U.S.C. § 1324c; regulations at 8 C.F.R. part 274 and 28 C.F.R. part 44.

Part A — Every New Hire

A1. Before the Offer

• [ ] Do not request immigration documents. Not on the application, not in the interview, not before acceptance. Requesting them here is document abuse under 8 U.S.C. § 1324b.
• [ ] Permissible questions only. "Are you authorized to work for us?" and "Will you now or in the future require sponsorship?" Nothing about citizenship, national origin, or specific status.
• [ ] No E-Verify pre-screening. Cases may not be created before an offer is accepted and the form completed.
• [ ] Run background screening on its own track, with the standalone disclosure and authorization required by 15 U.S.C. § 1681b if a consumer report is used.

A2. Day One — Section 1

• [ ] Employee completes Section 1 no later than the first day of employment.
• [ ] Full legal name, other names used, address, date of birth.
• [ ] Status attestation box checked — exactly one.
• [ ] Where the selected status requires it, the expiration date entered.
• [ ] Employee signature and date present.
• [ ] Preparer or translator certification completed if anyone assisted.
• [ ] Review it for completeness the same day. An incomplete Section 1 that sits in a file is a violation you created by not looking.

A3. Within Three Business Days — Section 2

• [ ] Compute the deadline from the first day of employment. Business days only; holidays do not count. Employment shorter than three days: complete by end of day one.
• [ ] Present the lists and let the employee choose. Script: "Please bring documents establishing your identity and permission to work. Here is the list of what's acceptable — you choose which to bring."
• [ ] Never name a document. Never say "green card," "work permit," or "Social Security card."
• [ ] Examine the documents in person — or by the alternative remote procedure only if the employer qualifies (E-Verify enrolled and in good standing, copies retained, applied consistently). Otherwise use an authorized representative for a remote hire.
• [ ] One List A document, or one List B plus one List C. Never both A and B/C.
• [ ] Record for each document: title, issuing authority, number, expiration date where applicable.
• [ ] Apply the standard: does the document reasonably appear genuine and relate to this person? That is the whole test. Do not investigate further; do not reject a facially valid document.
• [ ] Accept a receipt for a lost, stolen, or damaged document where permitted, and calendar the date the actual document is due.
• [ ] Enter the employee's first day of employment in the certification.
• [ ] Sign, date, and enter title, business name, and address.
• [ ] If copying documents, copy for every employee and retain with the form.

A4. E-Verify (If Applicable)

• [ ] Confirm whether you are required — federal contract clause, state statute, or voluntary enrollment.
• [ ] Create the case no later than the third business day after the start date, and never before the offer is accepted and the form is complete.
• [ ] Create a case for every new hire, or none. Selective use is a 8 U.S.C. § 1324b violation.
• [ ] Do not verify existing employees except as a federal contract requires.
• [ ] Post the required notices.
• [ ] On a tentative nonconfirmation: notify the employee privately and promptly, provide the referral materials, record the employee's decision to contest or not.
• [ ] Take no adverse action while the case is pending — no termination, suspension, schedule reduction, pay withholding, or delayed training.
• [ ] On a final nonconfirmation: check for a data-entry error first, then act. Document the check.
• [ ] Record the case verification number with the form.

A5. Filing and Calendars

• [ ] File the form separately from the personnel file.
• [ ] Set the purge date: three years from hire, or one year from separation, whichever is later.
• [ ] Set a reverification reminder only if employment authorization actually expires — ninety days out.
• [ ] Do not set reminders for citizens, for permanent residents, or for List B identity documents.

Part B — The Notice of Inspection

B1. Hour One

• [ ] Note the date and time of service and who received it.
• [ ] Read the demand. What records, for what period, by what date. It is usually three business days.
• [ ] Call counsel today. The review that follows should be privileged.
• [ ] Issue a preservation hold in writing. Stop the purge. Stop routine deletion of related email and payroll data. Continuing a purge after notice implicates 18 U.S.C. § 1519.
• [ ] Designate one point of contact. All communications route through that person.
• [ ] Instruct staff: do not discuss, do not speculate in writing, do not contact employees about their status.

B2. Day One — Extension and Scope

• [ ] Request an extension in writing if the records are voluminous or dispersed. Extensions are commonly granted. The request itself evidences good faith.
• [ ] Map the demand to sources: forms, payroll, hire and termination dates, entity documents, licenses, E-Verify records, contractor agreements.
• [ ] Confirm the entity scope. Which legal entity, which locations, which period.

B3. Days One to Three — The Review

• [ ] Reconcile forms against the payroll list. Identify missing forms and forms for people no longer employed.
• [ ] Apply the retention formula and set aside forms past their purge date — but do not destroy anything now.
• [ ] Score every form against the Part A checklist.
• [ ] Categorize each defect: technical or procedural (curable), or substantive (not curable).
• [ ] Correct the correctable: line through in a different color ink, enter the correct information, initial and date with today's actual date.
• [ ] Never back-date, erase, white out, or substitute a clean copy. 18 U.S.C. § 1001 and 18 U.S.C. § 1519 are worse than any paperwork penalty.
• [ ] Complete a new form where none exists, dated today, with a memorandum explaining the circumstances.
• [ ] Log every correction — form, defect, action, date, who did it.

B4. Production

• [ ] Produce exactly what was requested. Not more.
• [ ] Index the production and keep an identical set.
• [ ] Cover letter stating what is produced, the period covered, and any objections or clarifications.
• [ ] Do not volunteer the audit memorandum or the correction log at this stage.

B5. Responding to Each Notice

• [ ] Notice of suspect documents. Notify each named employee, give a genuine opportunity to present valid documentation, set a reasonable deadline, and document it. Do not terminate without that opportunity; do not ignore the notice.
• [ ] Notice of discrepancies. Same procedure — the employee gets the chance to resolve it.
• [ ] Notice of technical or procedural failures. Calendar the ten business day cure deadline. Correct, initial, date with today's date, and produce the corrected forms with a transmittal.
• [ ] Warning notice. Implement the corrective steps described and document them.
• [ ] Notice of intent to fine. Calendar the thirty day deadline to request a hearing. Missing it produces a final order.

B6. Mitigation Package

Assemble and deliver to counsel:

• [ ] The written compliance policy, dated before the notice.
• [ ] Training records with sign-in sheets.
• [ ] Prior internal audit memoranda and remediation logs.
• [ ] Headcount and revenue, for the size factor.
• [ ] Evidence that no unauthorized workers were involved, if true — a distinct statutory factor.
• [ ] Error-rate analysis in context: concentrated where, over what period, corrected when.
• [ ] Post-notice remediation: retraining, new procedures, an outside audit.
• [ ] Compliance history.

B7. Escalation Signals

Stop and get specialized counsel immediately if any of these appear:

• [ ] Questions about specific managers' conduct rather than about records.
• [ ] A grand jury subpoena rather than an administrative demand.
• [ ] Agents seeking interviews of individuals rather than documents.
• [ ] Any indication of document fraud under 8 U.S.C. § 1324c or 18 U.S.C. § 1546.
• [ ] Any suggestion of off-books payroll.
• [ ] Any employee reporting that a manager told them to obtain documents.

In those situations individual officers and managers may need separate counsel, because the company's interests and theirs can diverge quickly.

Part C — Reverification Decision Tree

• [ ] Is the person a U.S. citizen or national? → Never reverify.
• [ ] Is the person a lawful permanent resident? → Never reverify on card expiration. Permanent residence does not expire.
• [ ] Is the expiring item a List B identity document? → Never reverify. Identity documents do not control authorization.
• [ ] Is the person's actual employment authorization expiring? → Reverify before it expires, using the supplement.
• [ ] Automatic extension applicable? → Confirm the applicable extension rules and document the basis; do not reverify prematurely.
• [ ] At reverification: the employee chooses a List A or List C document. You do not name one.
• [ ] Authorization expired with no reverification? → Stop. This is a knowing-employment question under 8 U.S.C. § 1324a, not a paperwork question. Consult counsel before acting.

Part D — The Internal Audit

Run this annually, before anyone makes you.

D1. Set Up

• [ ] Engage counsel in writing, describing the legal purpose, so the work is privileged.
• [ ] Define scope: full audit under roughly two hundred forms; otherwise a defensible sample with full review of any location exceeding a defect threshold.
• [ ] Assemble the population: every form, every location, every entity.
• [ ] Obtain the payroll list with hire and termination dates.

D2. Reconcile

• [ ] Every current employee has a form.
• [ ] Every form corresponds to a real employee.
• [ ] Forms past the retention date are identified.
• [ ] No litigation or audit hold is in place before purging.

D3. Score

For each form:

• [ ] Section 1 complete, signed, dated on or before day one.
• [ ] Status box checked; expiration entered where required.
• [ ] Preparer certification present where used.
• [ ] Section 2 complete within three business days.
• [ ] Document title, issuing authority, number, expiration recorded.
• [ ] Correct list combination.
• [ ] Certification signed, dated, with title and business information.
• [ ] Start date accurate.
• [ ] Supplements complete where required.
• [ ] Copies attached if the employer copies at all.

D4. Remediate

• [ ] Correct in a different color ink, initialed, dated today.
• [ ] Attach a memorandum to each corrected form.
• [ ] Complete a new form where none exists, retaining any prior partial form attached.
• [ ] Never back-date.
• [ ] Do not use the audit to reverify anyone who does not require reverification.
• [ ] Do not turn it into a status investigation. It is a records review.
• [ ] Apply requests to employees uniformly, with a neutral explanation.
• [ ] Log everything — this log is your mitigation evidence.

D5. Report

• [ ] Written memorandum: scope, method, findings, remediation, open items, recommendations.
• [ ] Defect rate by location and by period.
• [ ] Assign owners and deadlines to open items.
• [ ] Calendar the next audit.

Part E — Worksite Enforcement Response

Post this where the front desk can see it.

• [ ] Designated responder: name and phone number, plus a backup.
• [ ] Everyone else: "I'm not authorized to respond. I'm contacting the person who is." Nothing further.
• [ ] Obtain and read any warrant. Photograph it. Note whether it is signed by a judge and what it authorizes.
• [ ] Judicial search warrant → entry within its scope is authorized. Do not obstruct. Observe and log.
• [ ] Administrative warrant naming an individual → does not authorize entry into non-public areas without consent.
• [ ] No warrant → consent is a legal decision. Do not consent to non-public areas without counsel.
• [ ] Never obstruct. Never make a false statement — 18 U.S.C. § 1001.
• [ ] Never instruct employees to hide, leave, or lie. That is harboring.
• [ ] You may state neutrally that employees have the right to decline to answer questions and to have counsel.
• [ ] Log who arrived, when, what was said, what was taken, and what areas were entered.
• [ ] Notify counsel immediately.
• [ ] Check state law: several states require employee notice within a short window after service, and restrict consent absent a judicial warrant.
• [ ] Preserve everything. No deletion, no cleanup, no exceptions.

Part F — Contracts and Acquisitions

F1. Staffing Agencies and Subcontractors

• [ ] Written representation of compliance with 8 U.S.C. § 1324a and applicable E-Verify requirements.
• [ ] Audit right on reasonable notice.
• [ ] Indemnity with a meaningful survival period.
• [ ] Notice obligation within a fixed number of days of any inspection notice or enforcement contact.
• [ ] Flow-down to lower-tier subcontractors.
• [ ] Termination right for material noncompliance.
• [ ] A documented procedure for responding to red flags — because constructive knowledge attaches to what your people see.

F2. Diligence in an Acquisition

• [ ] Determine the structure. Stock purchase → you inherit the forms and the liability. Asset purchase with rehiring → decide deliberately.
• [ ] Sample the target's forms; compute a defect rate.
• [ ] Review E-Verify enrollment, memorandum status, and case history.
• [ ] Review any prior notices of inspection, fines, or settlements.
• [ ] Check every state of operation for mandatory E-Verify and worksite-notice statutes.
• [ ] Price the exposure; take a specific representation and indemnity; consider escrow.
• [ ] In an asset deal, prefer completing new forms for retained employees over adopting a defective population.
• [ ] Review status-dependent employees under 8 U.S.C. § 1184 and 8 C.F.R. part 214; a change of employer or worksite may require filings, and a lapse implicates 8 U.S.C. § 1227.

Part G — Never Do These

• [ ] Never back-date a form. Ever. Under any pressure.
• [ ] Never ask for a specific document.
• [ ] Never reject a document that reasonably appears genuine.
• [ ] Never reverify a citizen or a permanent resident.
• [ ] Never take adverse action during a pending tentative nonconfirmation.
• [ ] Never destroy records after a notice of inspection.
• [ ] Never make a statement to investigators you have not verified.
• [ ] Never tell employees to hide or leave.
• [ ] Never act on an anonymous tip against named individuals without counsel and a uniform procedure.
• [ ] Never verify selectively based on accent, name, or appearance.
• [ ] Never mix immigration inquiries into background screening governed by 15 U.S.C. § 1681m.
• [ ] Never keep forms past the purge date as a supposed safety measure.

Part H — Deadline Table

Event	Deadline	Consequence of Missing It
Employee completes Section 1	On or before the first day of employment	Substantive violation
Employer completes Section 2	Within 3 business days of the first day	Substantive violation; not curable
Employment under 3 days	Section 2 by end of day one	Substantive violation
E-Verify case creation	By the third business day after start	Memorandum breach; enforcement exposure
Tentative nonconfirmation notice to employee	Promptly, privately	Discrimination exposure under 8 U.S.C. § 1324b
Reverification	Before authorization expires	Knowing-employment exposure under 8 U.S.C. § 1324a
Retention	3 years from hire or 1 year from separation, whichever is later	Failure-to-retain violation; over-retention expands audit surface
Production after notice of inspection	Generally 3 business days	Failure to produce is itself a violation
Cure of technical failures	10 business days	Technical defects become substantive
Request for hearing after notice of intent to fine	Generally 30 days	Final order enters
Charge under the anti-discrimination provision	Generally 180 days from the practice	Claim time-barred

Part I — Defect Triage Card

Print this and keep it with the forms.

Curable, do it today:

• Missing address or date of birth where identity is otherwise established.
• Missing title of the person who completed Section 2.
• Missing business name or address.
• Wrong column used for a document that is otherwise fully recorded.
• Missing date in Section 1 where the date is independently determinable.

Not curable — document, mitigate, and disclose to counsel:

• No form at all.
• Section 1 unsigned.
• Section 2 unsigned.
• Section 2 completed after the third business day.
• No document information recorded at all.
• Required reverification never performed.

Do not attempt to "fix":

• Anything requiring a date earlier than today.
• Anything requiring a signature from a person who did not actually examine the documents.
• Anything requiring reconstruction of a document you no longer have in front of you.

⚠️ The instinct to make the file look right is exactly the instinct that turns a civil penalty into a criminal referral under 18 U.S.C. § 1519. A defective form honestly maintained is survivable. A falsified form is not.

Part J — Employee-Side Checklist

For the person being hired.

• [ ] Complete Section 1 accurately on or before your first day. Your legal name, your current address, your date of birth.
• [ ] Check exactly one status box, and enter an expiration date only if your category requires it.
• [ ] Use the preparer certification if someone helps you fill it out.
• [ ] You choose your documents from the acceptable lists. Bring one List A document, or one from List B plus one from List C.
• [ ] An employer may not demand a specific document. If yours does, that may violate 8 U.S.C. § 1324b.
• [ ] An employer may not reject a valid document because it is unfamiliar.
• [ ] An employer may not ask about your immigration status or country of origin during hiring.
• [ ] Never present a false document. The consequences run well past the job — 8 U.S.C. § 1324c, 18 U.S.C. § 1546, and inadmissibility consequences under 8 U.S.C. § 1182.
• [ ] A tentative nonconfirmation is not a finding. You have the right to contest it, and your employer may not suspend, reduce, or fire you while the case is pending.
• [ ] You have wage and safety rights for work you actually performed, regardless of status. Threatening to report you for asserting them is unlawful retaliation.
• [ ] Keep copies of what you submitted and any notices you received.
• [ ] A charge deadline runs. Generally 180 days from the discriminatory act, filed with the Department of Justice's immigrant and employee rights section under 28 C.F.R. part 44.

Part K — Quarterly Five-Minute Review

• [ ] Pull five random forms. Score them. Any defect means retraining.
• [ ] Confirm the reverification list contains no citizens and no permanent residents.
• [ ] Confirm the purge ran, or that a hold is properly in place.
• [ ] Confirm the designated completer at each location is still employed there.
• [ ] Confirm E-Verify obligations for any new state of operation.
• [ ] Confirm the inspection protocol is posted and the phone numbers are current.

Related Documents

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• Employer Immigration Compliance: A Comprehensive Guide to Form I-9, E-Verify, and Worksite Audits
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