Toolkit · Immigration

The I-9 Audit and Worksite Enforcement Response Toolkit

8 U.S.C. § 1324

Type
Toolkit
Jurisdiction
National
Date
2024-02-25
Topic
Immigration

This toolkit supplies the documents an employer actually needs, in the order it needs them. It opens with a one-page compliance policy and a completer's script that prevents the most common discrimination violation. It provides an internal audit worksheet, a correction log, and an audit memorandum outline that together create the mitigation record. It supplies letter templates for a tentative nonconfirmation, a suspect-documents notice, a no-match inquiry, and an extension request. It includes a worksite enforcement desk card, contract clauses for staffing agencies and subcontractors, and a diligence request list for acquisitions. Every template is annotated with what it is for and what happens if it is skipped.

The I-9 Audit and Worksite Enforcement Response Toolkit

Immigration > Employer Compliance and Worksite Enforcement | Published 25 February 2024 - Updated 1 February 2025 | UpLaw - uplaw.us

Before You Use Anything Here

These templates assume the legal framework set out in 8 U.S.C. § 1324a (verification and knowing employment), 8 U.S.C. § 1324b (discrimination and document abuse), 8 U.S.C. § 1324c (document fraud), and the regulations at 8 C.F.R. part 274 and 28 C.F.R. part 44. Adapt them to your jurisdiction; several states impose additional notice duties with short deadlines.

⚠️ Nothing here authorizes back-dating, reconstruction, or any statement you have not verified. 18 U.S.C. § 1001 and 18 U.S.C. § 1519 are the reason.

Tool 1 — One-Page Compliance Policy

[COMPANY] EMPLOYMENT ELIGIBILITY VERIFICATION POLICY Effective: [date] | Owner: [name, title] | Review: annually

1. Scope. Every person hired by [Company] on or after November 7, 1986 completes Form I-9, without exception and without regard to citizenship, national origin, or appearance.

2. Responsible persons. The designated completer at each location is listed in Attachment A, with a named backup. No other employee completes Section 2.

3. Timing. Section 1 is completed by the employee on or before the first day of employment. Section 2 is completed by the designated completer within three business days of the first day of employment.

4. Documents. The employee chooses which acceptable documents to present. Company personnel shall never request a specific document, request more documents than required, or reject a document that reasonably appears to be genuine and to relate to the person presenting it.

5. E-Verify. [Applicable / Not applicable]. Where applicable, cases are created no later than the third business day after the start date, for every new hire without exception, never before an offer is accepted, and never for existing employees except as a federal contract requires. No adverse employment action is taken while a case is pending.

6. Reverification. Performed only when employment authorization expires. Never for United States citizens or nationals, never for lawful permanent residents on card expiration, never for List B identity documents.

7. Retention. Three years from the date of hire or one year from separation, whichever is later. Forms are stored separately from personnel files. The purge runs [monthly/quarterly] and stops immediately upon any hold.

8. Audit. An internal audit is conducted annually at the direction of counsel.

9. Government contact. All contact from any government agency regarding employment verification is referred immediately to [name, phone]. No other employee responds.

10. Non-retaliation. No employee will be retaliated against for raising a concern under this policy.

Why this exists. Good faith is a statutory penalty-adjustment factor, and good faith is proved with a dated document. A policy written after the notice arrives proves nothing.

Tool 2 — The Completer's Script

Laminate this. It prevents the single most common substantive violation.

Say this: "Welcome. I need to complete your employment eligibility verification form. Here is the list of acceptable documents. You can bring either one document from List A, or one from List B plus one from List C. You choose which documents to bring. I'll look at them and write down the information."

If asked "what should I bring?": "Anything on this list works. It's your choice — I can't tell you which to bring."

If the document is unfamiliar: "Let me check the list." Then check it. If it is on the list and reasonably appears genuine and to relate to the person, accept it.

Never say:

  • "Bring your green card."
  • "I need to see a Social Security card."
  • "Do you have a work permit?"
  • "Where are you from?"
  • "Are you a citizen?"
  • "That doesn't look right to me."

If you are unsure: stop and call [name]. Do not improvise, and do not ask the employee for anything additional in the meantime.

Why this exists. Asking for a specific document violates 8 U.S.C. § 1324b, and it is almost always committed by a well-meaning person trying to be careful.

Tool 3 — Internal Audit Worksheet

One row per form. Score, categorize, remediate.

# Employee Hire date Sec 1 signed/dated ≤ day 1 Status box + expiry Preparer cert if used Sec 2 within 3 business days Doc title/authority/number/expiry Correct list combination Certification signed w/ title Start date accurate Supplement complete Copies (if company copies) Defect class Action Date corrected By

Defect class key: T technical or procedural (curable) · S substantive (not curable) · M missing form · R reverification issue · X over-retention.

Scoring rules.

  • Any blank in Section 2's document fields → S.
  • Section 2 dated more than three business days after the start date → S.
  • Missing title of the completer, missing business address → T.
  • No form at all → M, and complete one today with a memorandum.
  • Reverification performed on a citizen or permanent resident → R, and stop the practice immediately; a pattern is a 8 U.S.C. § 1324b exposure.

Tool 4 — Correction Log

Every entry is mitigation evidence. Keep it with the audit memorandum, not with the forms.

Date Form / employee Defect found Action taken Ink color Initials Notes

Rules for every entry:

  1. The date is today's actual date. Never earlier.
  2. Line through — do not erase, white out, or obliterate.
  3. Different color ink from the original.
  4. Initial every change.
  5. If a new form was completed because none existed, note that and attach any partial prior form.
  6. If the defect cannot be cured, write "not curable — documented for mitigation."

Tool 5 — Audit Memorandum Outline

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT Prepared at the direction of counsel

I. Engagement and purpose. Counsel directed this review on [date] to assess compliance with 8 U.S.C. § 1324a and to provide legal advice.

II. Scope. Locations, entities, period, population size, sampling method if used.

III. Method. Reconciliation to payroll; scoring criteria; classification of defects.

IV. Findings. Total forms reviewed; defect counts by class; defect rate by location and by period; missing forms; over-retained forms.

V. Remediation. Corrections made, by class, with dates. New forms completed. Practices stopped (for example, unnecessary reverification).

VI. Open items. With owners and deadlines.

VII. Recommendations. Policy changes, training, system changes, contract changes.

VIII. Next review date.

Why this exists. At penalty time the government weighs good faith, seriousness, and history. This memorandum is the only document that speaks to all three at once.

Tool 6 — Extension Request Letter

Send the same day the notice is served.

[Date] [Agency / officer], [address] Re: Notice of Inspection served [date] — request for extension

Dear [Officer]:

[Company] received the Notice of Inspection referenced above on [date]. [Company] intends to cooperate fully.

The request encompasses approximately [N] forms across [N] locations, together with payroll and corporate records maintained in [describe]. To produce a complete and accurate response, [Company] respectfully requests an extension to [date], a period of [N] additional business days.

[Company] confirms that it has issued a preservation instruction suspending routine destruction of all records within the scope of the Notice.

Please direct all further communications to the undersigned.

Respectfully, [Name, title, phone, email]

Tool 7 — Tentative Nonconfirmation Notification

Deliver privately, in writing, and keep the acknowledgment.

CONFIDENTIAL — [Employee name]

We received a tentative nonconfirmation from E-Verify regarding the information on your Form I-9. This is not a determination that you are not authorized to work. It means the information did not match government records, which frequently happens for reasons such as a name change, a data-entry error, or an out-of-date record.

You have the right to contest this. If you choose to contest, you will be given a referral document with instructions and a deadline, and you will be allowed reasonable time to visit or contact the agency.

Your employment will not change while this is pending. You will not be terminated, suspended, reassigned, have your hours reduced, or have pay withheld because of this notice.

Please indicate your decision below and return this to [name]. If you have questions, contact [name] at [phone].

☐ I will contest. ☐ I will not contest. Signature: ____________________ Date: __________

Why the wording matters. Adverse action during a pending case is among the most frequently charged violations under 8 U.S.C. § 1324b. This letter is the record that none was taken.

Tool 8 — Suspect Documents Notification

Use after a notice of suspect documents. Do not terminate before this step.

CONFIDENTIAL — [Employee name]

[Company] received a notice from [agency] stating that the documentation recorded on your Form I-9 does not appear to establish employment authorization.

You have the opportunity to present other documentation. You may present any document or combination of documents from the Lists of Acceptable Documents (enclosed). You choose which documents to present. We cannot and will not tell you which to bring.

Please provide documentation by [date — allow a reasonable period]. If you believe the agency's information is incorrect, please tell us and we will consider the information you provide.

If you have questions, contact [name] at [phone].

Why this exists. Terminating on this notice without giving the opportunity invites a discrimination claim; ignoring the notice entirely invites a knowing-employment claim under 8 U.S.C. § 1324a. This letter is the middle path.

Tool 9 — No-Match Inquiry

Uniform procedure, applied to every mismatch.

[Employee name]

Our records show that the name and number reported for you do not match the agency's records. This does not mean anything about your immigration status or your right to work, and no action is being taken against you.

Mismatches commonly result from a name change, a hyphenated or compound surname, a typographical error, or an out-of-date record.

Please: (1) confirm that the name and number below are correct as they appear on your records; and (2) if anything differs, contact the agency to correct it, and let us know when you have done so.

Name on file: ______________ Number on file: ______________

Please respond by [date]. Contact [name] at [phone] with questions.

Procedure to follow it: check internal records for a clerical error first; apply the same letter to every mismatch; allow a reasonable period; take no adverse action on the mismatch alone; document each step.

Tool 10 — Worksite Enforcement Desk Card

Print at card size. Give one to every front desk, every shift supervisor, every site trailer.

IF GOVERNMENT AGENTS ARRIVE

1. Stay calm and polite. Do not obstruct. Do not run. Do not lie.

2. Say only: "I'm not authorized to respond to this. I'm contacting the person who is. Please wait here."

3. Call: [Name] [phone] → backup [Name] [phone] → counsel [Name] [phone].

4. Ask for and photograph any warrant. Note whether a judge signed it and what it authorizes.

5. Warrant signed by a judge → they may enter within its scope. Observe and log; do not interfere. Administrative warrant naming a person → 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.

6. Never tell anyone to hide, leave, or lie. That is harboring and obstruction.

7. Never make a statement you have not verified — 18 U.S.C. § 1001.

8. Log: who arrived, time, badge numbers, what was said, what was taken, what areas were entered.

9. Preserve everything. No deletion, no cleanup.

10. Employees may decline to answer questions and may have counsel. You may say that neutrally. Say nothing more.

Check your state law. Several states require notice to employees within a short window after service of an inspection notice, and restrict employer consent to entry absent a judicial warrant. Those deadlines can be as short as seventy-two hours.

Tool 11 — Staffing and Subcontractor Clauses

Compliance. Supplier represents and warrants that it completes and retains Form I-9 for every worker assigned to Company in compliance with 8 U.S.C. § 1324a and applicable regulations, and that it does not engage in any practice prohibited by 8 U.S.C. § 1324b.

E-Verify. Where required by federal contract or by the law of any state in which workers are assigned, Supplier participates in E-Verify in good standing and creates a case for each assigned worker within the required period.

Audit. Upon [N] days' notice, Company or its counsel may inspect Supplier's verification records for workers assigned to Company, at Company's expense, no more than [N] times per year.

Notice. Supplier shall notify Company in writing within [N] business days of receiving any notice of inspection, subpoena, or enforcement contact relating to workers assigned to Company.

Flow-down. Supplier shall impose equivalent obligations on any subcontractor whose workers perform under this agreement.

Indemnity. Supplier shall indemnify Company against penalties, fines, and defense costs arising from Supplier's breach of this section, surviving [N] years after termination.

Termination. Company may terminate immediately for material breach of this section.

Why this exists. Constructive knowledge attaches to what your people actually see. Contract terms do not erase that, but they create a documented expectation, an audit right, and a funding source.

Tool 12 — Acquisition Diligence Request List

  • Copies of Form I-9 for all employees, or a representative sample with the sampling method described.
  • Payroll register with hire and termination dates for the past four years.
  • E-Verify memorandum of understanding, enrollment date, and case history.
  • Any notice of inspection, warning notice, notice of intent to fine, settlement, or final order in the past seven years.
  • Written verification policy, training materials, and audit memoranda.
  • List of all locations and states of operation, for mandatory E-Verify analysis.
  • Staffing agency and subcontractor agreements with verification clauses.
  • List of employees whose authorization derives from employer-specific status under 8 U.S.C. § 1184 and 8 C.F.R. part 214, with expiration dates and pending filings.
  • Any charge or complaint under 8 U.S.C. § 1324b or 28 C.F.R. part 44.
  • Any state agency inquiry regarding employment verification.

Structure note. In a stock purchase you inherit the forms and the liability. In an asset purchase with rehiring, prefer completing new forms over adopting a defective population — and price the residual exposure with a specific representation, an indemnity with a real survival period, and an escrow if the defect rate warrants it.

Tool 13 — Reverification and Purge Calendar Specification

Build the calendar to these rules, not to document expiration dates.

Reverification entries — create only if all are true:

  1. The person is not a United States citizen or national.
  2. The person is not a lawful permanent resident.
  3. The expiring item is the person's employment authorization, not a List B identity document.
  4. No automatic extension applies, or the extension end date is used instead.

Entry fields: employee, authorization expiration date, reminder at ninety days, reminder at thirty days, completer assigned, completion date, supplement filed.

Purge entries:

  • Trigger date = later of (hire date + 3 years) and (separation date + 1 year).
  • Run [monthly/quarterly]; produce a log of forms purged.
  • Hold flag: if any inspection notice, subpoena, charge, or litigation hold is active, the purge does not run. Continuing a purge after notice implicates 18 U.S.C. § 1519.

Quarterly verification of the calendar itself:

  • No citizens on the reverification list.
  • No permanent residents on the reverification list.
  • No List B document dates driving entries.
  • Purge log current, or hold flag documented.

Tool 14 — Penalty Mitigation Package Index

Deliver to counsel as a single indexed binder. Each tab maps to a statutory adjustment factor.

Tab Contents Factor it addresses
1 Written policy, dated before the notice Good faith
2 Attachment A: designated completers by location, with dates Good faith
3 Training materials and sign-in sheets Good faith
4 Prior audit memoranda and correction logs Good faith; history
5 Defect analysis: rate by location, by period, by class Seriousness
6 Evidence that no unauthorized workers were involved, if true Unauthorized workers
7 Headcount, revenue, entity structure Size of business
8 Compliance history: prior notices, outcomes History
9 Post-notice remediation: retraining, new procedures, outside audit Good faith
10 Correspondence showing prompt cooperation and the extension request Good faith

Presentation note. Lead with what changed and when, not with excuses. "We found this ourselves in March, fixed it in April, and retrained in May" is worth more than any argument about the categorization of a single form.

Tool 15 — Employee Rights Notice

Post alongside the required E-Verify notices where applicable, and include in onboarding.

YOUR RIGHTS IN THE HIRING PROCESS

  • You choose which documents to present from the Lists of Acceptable Documents. No one here may tell you which to bring.
  • No one may ask you for more documents than the form requires.
  • No one may reject a document that reasonably appears genuine and relates to you.
  • No one may ask about your citizenship, national origin, or immigration status during hiring beyond whether you are authorized to work here and whether you will need sponsorship.
  • If E-Verify returns a tentative nonconfirmation, you have the right to contest it, and your job, hours, and pay will not change while it is pending.
  • You have wage, hour, and safety rights for work you actually performed.
  • Retaliation is prohibited, including threats relating to immigration status, for raising a concern under this policy or under wage, safety, or anti-discrimination law.
  • To raise a concern internally: [name, phone, email]. You may also file a charge with the Department of Justice's immigrant and employee rights section, generally within 180 days.

Tool 16 — Tabletop Exercise Script

Run this once a year. It takes ninety minutes and it finds everything.

Scenario. At 9:00 a.m. Tuesday, an officer serves a notice of inspection at your largest location. Production is due Friday at 5:00 p.m.

Round 1 (15 min). Who received it? What did they do in the first ten minutes? Score: did the notice reach the designated responder within an hour?

Round 2 (20 min). Issue the preservation hold. Who sends it, to whom, in what form? Does the purge actually stop, or does it run automatically on Wednesday night?

Round 3 (20 min). Locate the forms. Time it for real. Score: could you physically produce every form by Friday?

Round 4 (20 min). Reconcile to payroll. How many forms are missing? How long did the reconciliation take?

Round 5 (15 min). Injects: (a) an officer asks a supervisor a question in the parking lot; (b) an employee asks whether they should come to work tomorrow; (c) a manager proposes "cleaning up" three forms. Score the responses against Tools 2 and 10.

Debrief. Every gap becomes an owned action item with a date. Re-run in six months if more than three gaps appear.

Tool 17 — Quick Reference: Never / Always

Never Always
Ask for a specific document Present the list and let the employee choose
Reject a facially valid document Apply the reasonable-appearance standard
Reverify a citizen or permanent resident Reverify only expiring employment authorization
Take action during a pending tentative nonconfirmation Notify privately and wait
Back-date, erase, or white out Correct in different ink, initial, date today
Destroy records after a notice Suspend the purge in writing
Improvise an answer to an investigator Route to the designated responder
Verify selectively Verify every new hire identically
Keep forms past the purge date Purge on a written schedule
Mix immigration questions into screening Keep screening and verification on separate tracks

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