Immigration Worksite Compliance Issues for Employers

Immigration worksite enforcement has become a balancing act between verifying eligibility to work and avoiding discrimination; thus it has merged two fields of law: labor and employment law with immigration and nationality law.

Immigration Worksite Compliance
Maria I. Casablanca

Maria I. Casablanca

January 31, 2018 01:20 PM

In 1986, Congress passed the Immigration Reform and Control Act (IRCA).[i] Its purpose was to curb the hiring of undocumented workers and create new obligations on immigration worksite enforcement for employers. Since then, the United States Citizenship and Immigration Services (USCIS) has changed Form I-9 Employment Eligibility Verification several times. Moreover, case law has emerged due to fines imposed for paperwork violations and discrimination based on nationality.[ii]

Immigration worksite enforcement has become a balancing act between verifying eligibility to work and avoiding discrimination; thus it has merged two fields of law: labor and employment law with immigration and nationality law.

Immigration worksite compliance is enforced on the premise that upon hiring an employee, the employer must accurately and fully complete USCIS Form I-9 and inspect supporting documentation within three days of hire. The employer must have some knowledge of the documents to be presented and should be cautious as to not discriminate based on national origin or citizenship. [iii]

Though the form is published by USCIS, it is Immigration Customs and Enforcement (ICE) that performs site inspection and audits. An investigator serves a Notice of Inspection (NOI) on the employer who is allowed at least three days to respond with the I-9s and other documents such as payroll, articles of incorporation, and other documents to the local ICE office. The documentation will be reviewed by an auditor, and the case will be assigned ICE counsel. If the employer receives a letter with the proposed fine, the immigration attorney should respond within 30 days of the date of the letter with a request for both a hearing and to enter into negotiations to lower the fine.

The Immigrant and Employee Rights Section (IER) enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). The applicable statute prohibits employers from engaging in discrimination during, hiring, firing, recruitment, or referral for a fee; unfair documentary practices; and retaliation and intimidation due to citizenship status and national origin. [iv]

The employer should request documentation from all employees hired after the enactment of IRCA (November 6, 1986). They must allow the employee to choose which documents to present in order to comply with the sections on the form and not insist on additional documents. An employer must keep the I-9s on file, though there is no requirement to keep photocopies of documents except if the employer participates in E-Verify. However, if the employer does keep photocopies, they should be kept for all employees and not just selected ones.

The information indicated on Form I-9 is protected by a privacy component and subject to safeguarding as personally identifiable information (PII). The I-9 has personal employee information, such as name, address, date of birth, and social security numbers in some instances. Varying government agencies define PII differently. In fact, the Department of Homeland Security, Department of Labor, and Government Accounting Office have their own definitions.[v] If an employer participates in E-Verify, there is most certainly a PII issue. E-Verify requires a photo match of the immigration document and social security of the employee. In the event any I-9 forms are misplaced or lost, the data breach must be communicated to the employee. Therefore, employers must safeguard I-9s and any supporting documentation.

The 2017 USCIS Handbook[vi] provides guidance for forms kept electronically such as to limit access to authorized personnel, provide backup and recovery to protect against information loss, train employees to minimize risks in keeping electronic records, and ensure a procedure of recording access information when information is accessed.[vii]

Employers storing I-9 forms in paper format should follow best practices and ensure that documents are secure by keeping them separate from other personnel files in a locked cabinet with limited access by Human Resources personnel or the owner and a tickler system to destroy them after the retention period.


The employer has their work cut out for them, especially in the coming year. Employers should keep the USCIS Handbook handy and constantly refer to it. It is also important that the employer check the USCIS website for updated versions of the form I-9.

[i] Immigration Reform and Control Act, Public Law 99-603 (Act of 11/6/86).

[ii] See this link for an example of case based on discrimination:

[iii] INA § 274b-Unfair Immigration-Related Employment Practices.

[iv]8 US Code § 1324b - Unfair immigration-related employment practices.



[vii]Page 33:


With more than two decades of experience in U.S. Immigration and Nationality Law, Maria “Marisa” Casablanca represents corporate clients and individuals in obtaining immigration assistance and benefits. She is board certified in immigration and nationality law by the Florida Bar and was a member of the Florida Bar’s Certification Committee for Immigration and Nationality Law. She has also served on national liaison committees with USCIS and the Department of State. Clients seek Marisa’s reliable counsel on the full spectrum of immigration issues, including obtaining employment visas, investment and business-related visas, residency for foreign nationals, representing family members of permanent residents and U.S. citizens, and assisting those seeking asylum. She has developed an expertise in the EB-5 field of visas as one of the first Spanish speaking attorneys handling high net worth clients from Latin America.

Related Articles

The Price of Admission

by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

Loophole or Fatal Flaw?

by Joseph Begonis

Canada's Best Lawyers share their thoughts on the Safe Third Country Agreement

What Is the Safe Third Country Agreement?

Chain Migration Solutions Desperately in Search of a Problem

by Aaron C. Hall

The White House insists that any new law giving Dreamers a permanent place in the United States also stop what it refers to as the chain migration problem.

Chain Migration

H-1B Applications: Proactive Steps in 2018

by Brad J. Hendrick

Last year, USCIS received approximately 199,000 applications for the 85,000 H-1B visas allocated each year.

H-1B Applications

Interagency Cooperation: Raising the Bar for Immigration Compliance

by Kathleen Campbell Walker

Stove-piped legal representation is not advisable (e.g., only focusing on one agency segment or one portion of a filing process).

Immigration Compliance

Trump Administration’s Termination of DACA, TPS, and H-4 EAD Immigration Programs Could Leave Employers in a Lurch

by Ann Massey Badmus

Several immigration programs that have authorized over a million immigrant workers are expected to end in 2018 and 2019.

DACA, TPS, and H-4 EAD

The Trump Administration’s Attack on Legal Immigration

by Bennett R. Savitz

The adjudication strategy achieved the change the Trump administration wanted to make to the H-1B program without having to amend the regulations.

Legal Immigration – Trump

Smart Policy and Smart Compassion

by David P. Berry

Why it makes sense to protect the Dreamers.


H-1B Planning for Fiscal Year 2019

by Lisa Koenig

Employers should be prepared to pivot.

H1-B Planning

Trump and Immigration: Separating Truth from Fiction

by Harlan G. York

Deportations aren’t up, but the people who are being deported are more “newsworthy.”

Trump and Immigration

Dilip Patel, 2018 "Lawyer of the Year" for Immigration Law

by Nicole Ortiz

Dilip Patel of Dilip Patel Law Firm was named 2018 "Lawyer of the Year" in Tampa for Immigration Law.

Dilip Patel LOTY

In the News: South Florida

by Compiled by Nicole Ortiz

A summary of newsworthy content from South Florida lawyers and law firms.

South Florida In the News 2018

In the News: Southern California

by Compiled by Nicole Ortiz

A summary of newsworthy content from Southern California lawyers and law firms.

Southern California In the News

Employers Must Soon Use Yet Another New I-9 Form

by Fisher Phillips

New document could be liability trap for unsuspecting employers.

Begin Using the New Form Now

The Global Employer: Strategies and Best Practices for an International Workforce

by Garfinkel Immigration Law Firm

Developing and retaining an international workforce is essential to competing in the global marketplace.

Global Employer Best Practices

Trending Articles

Presenting The Best Lawyers in Australia™ 2025

by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Best Lawyers Expands 2024 Brazilian Awards

by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Brazil™ and the first edition of Best Lawyers: Ones to Watch in Brazil™.

Image of Brazil city and water from sky

The Best Lawyers in Mexico Celebrates a Milestone Year

by Best Lawyers

Best Lawyers is excited to announce the 15th edition of The Best Lawyers in Mexico™ and the second edition of Best Lawyers: Ones to Watch in Mexico™ for 2024.

Sky view of Mexico city scape

How Palworld Is Testing the Limits of Nintendo’s Legal Power

by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

How To Find A Pro Bono Lawyer

by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

Announcing The Best Lawyers in New Zealand™ 2025 Awards

by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Presenting the 2024 Best Lawyers Family Law Legal Guide

by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway

Announcing The Best Lawyers in Japan™ 2025

by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition

by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Canada Makes First Foray Into AI Regulation

by Sara Collin

As Artificial Intelligence continues to rise in use and popularity, many countries are working to ensure proper regulation. Canada has just made its first foray into AI regulation.

People standing in front of large, green pixelated image of buildings

Commingling Assets

by Tamires M. Oliveira

Commingling alone does not automatically turn an otherwise immune asset into an asset subject to marital distribution as explained by one family law lawyer.

Toy house and figure of married couple standing on stacks of coins

How Much Is a Lawyer Consultation Fee?

by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

The Hague Convention and International Custody Battles

by Alexandra Goldstein

One family law lawyer explains how Joe Jonas and Sophie Turner’s celebrity divorce brings The Hague Convention treaty and international child custody battles into the spotlight.

Man and woman celebrities wearing black and standing for photo

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide

by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

New York Passes 9/11 Notice Act

by Gregory Sirico

Best Lawyers highlights the newly enacted 9/11 Notice Act, which seeks to find individuals eligible for medical care coverage under different federal programs.

Firefighter stands with their back turned with flames in the background

Filing For Divorce in North Carolina

by Melody J. King

Family law lawyer Melody King answers some of the most important questions individuals may have about filing for divorce in North Carolina.

Illustration of man and woman on paper that has been torn apart