Brian Little, CEO of the Farm Employers Labor Service and a policy advocacy director for the California Farm Bureau, kicked off the organization’s latest webinar with reports noting that while the current administration does not want to disrupt food production, U.S. Immigration and Customs Enforcement has increased worksite audits of I-9 forms tenfold.
Little added that the Department of Homeland Security, U.S. Citizenship and Immigration Services and ICE have modified the definitions of “de minimis,” or minor, mistakes that can be easily rectified versus substantive violations that trigger immediate financial penalties.
“We aren’t expecting a lot of raids, but we are expecting a lot more in the way of audits of I-9s,” he says. “That usually happens with a letter where you have to furnish your I-9s and do a few other things.”
High Cost of Noncompliance
Catherine Houlihan of Barsamian, Moody & Houlihan joined the webinar to walk through some of the places for employers to look out for and review ahead of a potential I-9 audit. First, Houlihan clarified that her guidance is a resource, not legal counsel. The goal was to help agricultural employers get ahead of I-9 audits to ensure paperwork is compliant.
Houlihan says an ICE update in March detailed what the organization considers a technical violation, some of which have changed from a technical violation to a substantive violation.
“There’s a lot of things that used to be technical violations that now result in those substantive violations, which is why performing those internal I-9 audits is really going to be critical right now,” she says.
An employer will face penalties for uncorrected technical violations as well as substantive violations. She says these penalties are per violation per form penalty and can range from $288 to $2,861 per form per employee.
“That adds up very quickly. If you have 10 employees and you’ve got one violation on there, that can be a pretty significant number,” Houlihan says. “If you’ve got a thousand employees and you’ve got a violation on every single one, that can add up really, really fast and reach some astronomical numbers.”
Why Agriculture Is a Target
Agriculture is a major target for I-9 audits because of the seasonal nature of the workforce, oftentimes with employees who may only work for a couple of days and mistakenly leave without a completed I-9 form.
Both the Department of Labor and ICE have the authority to perform I-9 audits. The agencies will formally request all paperwork through a notice of inspection, and a Homeland Security Investigations agent will perform the audit. Typically, employers have just three business days to respond.
“You’re going to want to make sure that you have set forth already who’s handling these things,” Houlihan says. “Where are your I-9s? Make sure they’re maintained in a manner that’s easily accessible so that you can comply with these quick timelines.”
The auditor will explain the process, timeline and answer any questions. Houlihan cautions employers to work through who from the organization should be in the meeting with the auditor and speak for the operation.
Common Errors and New Substantive Violations
First, USCIS issued an updated version of the I-9 form in January 2025. Using an outdated version of the I-9 form is an automatic violation.
Houlihan says that while the Spanish version can be used as a guide for the employee, using the Spanish version of the form outside of Puerto Rico is now a substantive violation. Employers must stop using the Spanish form as the official I-9 and immediately review past filings to make corrections.
Failure to ensure the employee provides their name and address throughout the form is considered a technical violation. Houlihan says it’s critical to have someone who goes through ID verification also go through the I-9 form to ensure it is complete and accurate.
“I can’t tell you how many times I’ve done an I-9 audit and there’s some of this basic information missing and now the employee is gone,” she says. “It’s really important that at that time you go through and you make sure that everything is there. It’s easier to fix it on the spot.”
Another frequent oversight, Houlihan says, is failing to record the employee’s name at the top of Supplement A to indicate whose I-9 form it is.
“I know that’s one of those ones that we always think ‘It’s attached to the first page, everything’s fine,’ but that right here is a technical violation,” she says.
An employee failing to fill out their date of birth is now a substantive violation, as is an employee failing to add their alien registration number or USCIS number.
“I can’t tell you how many times I see that line is left empty,” she says.
Another substantive violation is an employee not dating all the sections. While she says there’s multiple lines that require a date by either the employee or employer, omitting a date is a substantive violation. Also, failure to provide the date of hire in the employer portion is also a substantive violation as is the failure to record the document title, issuing authority, document number and expiration date of the applicable document.
“It’s not enough to just list a little bit of information,” she says. “All of those lines need to be completed.”
Exemptions and Best Practices
Houlihan says another blind spot for operations is missing I-9s or documentation for owners and upper management, noting “Those individuals still need to complete those I-9s.” Employers, though, do not need I-9s for independent contractors or employees hired by a farm labor contractor.
“The labor contractor would be obligated to complete their own I-9s for their own employees,” she notes.
To minimize errors, Houlihan also suggests that an operation designate one person or only a few people to process I-9s.
“The fewer employees doing it the better, because you have more consistency in the processing and your ability to respond to an audit and make any corrections is a little bit easier,” she says.
If an employee needs help filling out the I-9 form, the assistance constitutes the use of a translator, meaning an employer must fill out a preparer or translator certification. Employers must also give employees a list of acceptable documents — List A, B and C.
Employees must complete and sign Section 1 of the I-9 form no later than their first day of employment, though the paperwork cannot be filled out until the employee officially accepts employment. For former employees, Houlihan says “you need to retain copies of the completed forms for three years after the date of hire or for one year after the employee is terminated, whichever is later.”
Conducting an Internal Self-Audit
Houlihan encourages performing mock audits and working to rectify any potential issues. She says this will also help remove any I-9s from former employees no longer needed.
“You should either have HR perform an internal audit or you can obtain outside counsel or in-house counsel, somebody who can perform this audit and confirm that all of the information that needs to be done ... is actually on the I-9,” she says.
Houlihan strongly recommends documenting errors in an audit log alongside the corrective action taken. Internal auditors should notate the edits and avoid whiteout or a permanent pen to mask mistakes.
“How are you going to make that audit trail of what you corrected?” she says. “Keep those I-9 audit logs and any communications to the employees regarding the I-9 audit process. Keep the audit documentation separate from your I-9 audit file.”
Notate if a correction cannot be made, because she says “those kind of things go towards that good faith effort to make sure that you are in compliance. So, if you do have an I-9 audit with ICE, you can point out that you were making good faith efforts to maintain compliance.”
