How Agricultural Business Owners Can Ensure I-9 Compliance Amid Increased Enforcement

In recent years, U.S. immigration enforcement has sharply increased, with Immigration and Customs Enforcement (ICE) audits becoming more frequent. This trend is expected to continue and accelerate with the growing budget for ICE operations. For agricultural business owners, this means heightened scrutiny and a critical need to ensure I-9 compliance. In this blog post, we'll explore the importance of I-9 compliance, what you need to know about ICE enforcement, and the steps you can take to protect your business from costly penalties.

Why I-9 Compliance Matters Now

1. Rising ICE Enforcement: ICE is ramping up domestic enforcement, including audits and investigations. With the agency's budget growing significantly (projected to increase tenfold from $10B to $100B by 2029), it’s clear that businesses, especially those in agriculture, will face more frequent audits.

2. The Increasing Risk of Penalties: Failing to comply with I-9 requirements can result in significant penalties—up to $28,619 per violation for knowingly employing unauthorized workers (third or subsequent offense), and $288–$2,861 for paperwork violations. For agriculture businesses that rely on seasonal or foreign workers, maintaining proper documentation is crucial to avoid financial repercussions.

3. The Growing Labor Shortage: Agriculture faces a unique challenge with a labor force that’s aging and increasingly lacking proper documentation. This labor crunch is compounded by the fact that younger generations are not entering farming in the same numbers. With a shortage of domestic labor, compliance with I-9 forms is more crucial than ever.
   What Is the I-9 and Why Does It Matter?

The I-9 form is essential for verifying the identity and employment authorization of individuals hired to work in the U.S. Section 1 of the form is completed by the employee, while Section 2 is completed by the employer, who must physically inspect documents that prove the employee’s eligibility to work.

For agriculture business owners, this process is a yearly challenge, especially with seasonal workers coming in and out. If your workers are H-2A visa holders, you’ll need to manage an additional layer of compliance as they go through the annual process of renewing their work authorization and providing up-to-date documentation for each new contract.

Common I-9 Compliance Pitfalls to Avoid

1. Using Outdated Forms: Always ensure you are using the most current version of the I-9 form. The latest version is the 01/20/2025 edition, which expires on 05/31/2027. Using outdated forms can lead to compliance issues during an audit. For employers using electronic I-9 systems, it’s even more important to ensure the system reflects the updated form.

2. Incorrect Document Verification: Employers often make the mistake of either failing to verify documents properly or requesting additional, unnecessary documents that lead to accusations of document abuse. Ensure that you are only asking for the documents required by law to avoid allegations of national origin discrimination. The employer does not select which documents a worker provides and is not allowed to request more than what is required for compliance. If a List A Document or a combination of List B and List C Documents are provided, the employer may not continue requesting additional documents.

3. Failure to Reverify Employees: For H-2A workers, it’s crucial to stay on top of reverification. Their work authorization can expire, and employers must update the I-9 form to reflect any changes in work authorization status. It’s also important to understand the difference between transferring and rehiring workers within the H-2A program.

Preparing for an ICE Audit

When ICE comes knocking, there are two types of visits you need to understand: audits and raids. An audit is more structured, where ICE typically provides a notice of inspection and a 3-day window to produce your I-9 forms. A raid, on the other hand, is an unannounced and aggressive inspection where ICE agents will search the premises for undocumented workers and invalid documentation.

Here’s how to prepare:

1. Maintain Organized Records: Make sure your I-9 forms are easily accessible. Keep them separate from other employee records, ensuring they are secure but ready to be produced if an audit occurs.

2. Train Your Staff: Designate a compliance officer who is responsible for ensuring all I-9 forms are properly completed and up-to-date. Provide training on how to complete and maintain I-9 forms, ensuring your team is well-versed in the latest version and requirements.

3. Know Your Rights: Understand your rights during an ICE audit or raid. Employers have the right to ask for identification from ICE agents and request to see their warrants before granting them access to your premises.

4. Self-Audit Regularly: Perform routine self-audits of your I-9 records to ensure they are complete and correct. Catching errors before an audit occurs can save you time and money.

When ICE Comes Knocking: What to Do

1. Request Identification and a Valid Warrant: If ICE arrives for a raid, it is crucial to verify their authority. Request to see their warrant and ensure it is judicial. If they do not have a valid warrant, you are not obligated to allow them to proceed.

2. Designate a Point of Contact: Have someone on your team trained and ready to act as your point of contact with ICE. This person should be responsible for managing the situation calmly and effectively.

3. Understand What ICE Can and Cannot Do: ICE is limited in the scope of their actions. They cannot search your private areas without a proper warrant. If they exceed their scope, you have the right to challenge their actions. Additionally, both employers and workers have the right to remain silent during a raid.

Why Digital I-9 Solutions Are Key

With the complexities of managing I-9 compliance, especially for agriculture businesses that deal with seasonal or temporary workers, a digital I-9 solution is invaluable. A digital solution streamlines the process, ensures forms are always up-to-date, and allows for easy record retrieval in case of an audit.

Key benefits of digital I-9 solutions:

• User Friendly Compliance: Seso’s user friendly work flow allows workers to independently complete Section 1 of the I-9 and the system intelligently guides the employer through the countersignature process.

• Audit Trails: Maintain a secure and traceable digital record of every I-9 completed, including timestamps and IP addresses.

• Ease of Access: Quickly retrieve any I-9 during an audit without the need to search through physical files.

Q&A

Seso's legal team recently ran a webinar covering I-9 compliance and how to avoid ICE visits wherever possible. Below we share the Q&A from the webinar, touching on some burning questions from agriculture business owners. If you would like to be kept up to date on Seso's upcoming webinars, make sure to subscribe to our newsletter here.

Question: If you didn’t ever keep copies of documents before the I-9 process, and then decide to start, should you ask employees who are already employed to now bring in their documents? Or do you do it going forward with new employees only?

Answer: Employers are not required to request documents from current employees if they have not previously collected them. If you decide to implement document retention moving forward, it would only apply to new hires and that policy should be administered and carried out consistently for everyone.

Question: Your example of the expired PR card saying that they need to provide an unexpired document or stamped passport is confusing. Why not just inform them that they have the option of providing unexpired List B and C?

Answer: Apologies for the confusion, and you’re 100% correct. An expired PR card at the time of hiring could be substituted with an unexpired List B or C document. Alternative documents could be used and the instructions require Either a List A document or a combination of a List B and List C document. The point I was trying to make there was that once a permanent resident presents their green card, you do not need to “re-verify” that worker just because their green card expires while they are employed. That permanent resident status is “evergreen” and lasts forever - no need to re-verify because a permanent resident’s work authorization does not expire even though their green document might have an expiration date. If the document is unexpired at the time of hiring, there is no need to re-verify in the future. 

Question: So if you have an employee that keeps coming back every year, domestic, do you need a complete new I-9? I thought only the reverification form/page?

Domestic U.S. workers who return seasonally each year, they do NOT need an I-9 each year?

Answer: Correct. For domestic employees who end employment and return seasonally each year, a complete new I-9 is not required. The employer can complete the re-hire Supplement B and attach to the original I-9 in that scenario. The employer would also need to reverify the employee’s work authorization or employment authorization document (EAD) if expired.

It’s important to note that a worker’s I-9 is not a single document, rather it is a combination of all of the I-9’s and supplements that worker has executed over time. Together those documents make up the worker’s I-9 audit file that proves they had work authorization during any given point in time with the employer. Thus, one employer may choose to use the re-hire supplement B where another may execute a complete new I-9 for a re-hired worker. Both can be compliant!

For H-2A workers, it’s generally easiest and most efficient to do a brand new I-9 every year, because the work authorization needs to be updated each season.

Question: We have had candidates apply, interview and offered employment. During the onboarding, we've had false documents be provided. We've made copies of the false documents to document discrepancies that were found and attached the document to the application mainly to show good faith efforts that we are not denying employment due to an attempt to discriminate against the candidate. Is this a good practice or does this put us in jeopardy?

Answer: As mentioned on the webinar, employers are not required to be document experts, but the M-274 is a good resource for example documents. Also, be very careful about requesting more documentation than is required, and an employer only needs to produce a list A document or a combination of list B documents, and it’s not the employer’s choice which document the worker provides. With all that being said, when you are presented with something that is obviously fraudulent on its face, and that document becomes part of a negative hiring decision, it would be appropriate to save that document in the file, as it may be proof that the candidate was rejected for a lawful reason. My word of caution on that front would be the document should be obviously fraudulent in that scenario. 

Finally, under no circumstances should an obviously fraudulent document ever be attached to the I-9. If the worker cannot produce the required List A and List B+List C document, the employer must terminate the worker if an alternative document is not produced.

Question: Local fieldworkers might voluntarily quit, should we treat their I-9 form with the retention time rules? They might come into work 1 year or two later. Did we need to keep the old I-9 form "which we calculated a destruction date"?

Answer: The I-9 form should be retained according to the retention guidelines - for 3 years from hire date or 1 year after termination, whichever is later. If a local domestic worker is hired on January 1, 2025, and is fired on March 1, 2025, the employer would need to retain that I-9 until January 1, 2028 - three years after the date of hire, because that is longer than 1 year after the termination.

If the worker was re-hired, the employer would have a choice of doing a new I-9 or doing a Supplement B re-hire if the worker is returning between 3 years of the original hire date. When in doubt on the 3-year window, the best practice is to simply complete a new I-9.

Question: If we scan the completed paper I-9s for filing, do we need to keep the original paper or would the electronic copy be good enough?

Answer: If you are scanning and storing the completed I-9 forms electronically, the electronic copy can replace the original paper copy as long as the scanned version is a true, accurate, and legible copy of the original form. Make sure you comply with the I-9 storage and security requirements for electronic records - 8 CFR § 274a.2(e)-(i); USCIS M-274 Handbook, Section 3.0 – Retaining Form I-9. The important thing will be the ability to produce them upon request by ICE.

Question: I know this is limited to I-9s. What if they were categorized or hired as W-9's?

Answer: W-9 forms are used for independent contractors (not employees). I-9 forms are only required for employees, not independent contractors. W-9s are never a substitute for an I-9 where an I-9 is required. H-2A workers are never classified as independent contractors.

Question: If there is an audit and we have about 1,000 I-9s for employees, should we make copies to give for the audit instead of the originals that we have on hand?

Answer: I would recommend directly asking the auditor their preferred method of delivery. Generally speaking, copies of the I-9 forms during an audit are just fine, and you can still retain the originals in your records as required by law.

Question: What if ICE agents don’t identify, or they use force with no warrant?

Answer: Do not resist or take aggressive action, but do document the actions of the agents and take notes on all of their activities. Make sure you calmly and clearly request a warrant multiple times and ask for a supervisor. Employers are within their rights to ask for identification and verify the legality of the search that violates an expectation of privacy. While you may not be able to stop the agents in real time, documenting their actions and thinking strategically may pay dividends down the line.

Question: What are the risks to the employer of training and the risks of not training employees in what's required or permissible during a raid?

Answer: Failure to train and prepare for a raid means that the consequences will be worse than they had to be if one happens. How we prepare is something we have control over. It does not have to be a scary conversation, and most workers are generally informed of the national immigration climate. I can’t think of any negatives of training/preparing other than making workers nervous, but that risk can be reduced if the messaging is done correctly.

Question: If the embassy outside the United States is inquiring about a worker, is the employer required to respond?

Answer: If the worker is stuck in administrative processing and the consulate needs information about that worker from the employer, it would be in the employer’s interest to respond to that inquiry or request.

Question: Should ALL I-9s (domestic employees & H-2A employees) be kept together in one file?

Answer: There’s not really any distinction between a domestic worker I-9 and an H-2A worker I-9, but because various types of audits may require the employer to quickly provide those things in categorized fashion, it’s not a bad idea to keep them in separate stacks so long as they’re being kept subject to same retention standards. More importantly, it’s important to keep the I-9’s separate from the employee’s larger personnel file. You do not want to dig through the entire file hunting for the I-9. 

Question: Is the new edition of Form I-9 finalized, had previously seen different editions with different dates on USCIS?

Answer: Yes, the new edition of Form I-9 has been finalized. It is important to use the correct and most current edition of the form, which is listed on the USCIS website. Edition 01/20/25, Expires 05/31/2027

Question: Typically, how long does a Department of Labor (DOL) audit take to complete?

Answer: DOL audits can vary in length depending on the complexity and size of the organization. Typically, they may take anywhere from a few days to several weeks to a few months. Sometimes they drag on for years. Employers should be prepared for the process to take time and ensure their records are in order. The faster complete records are provided, the faster the auditor typically goes away!

Question: When the worker gets transferred to a new contract on the same farm and once the I-797 is received - we update that on Supplement B?

Answer: Yes, when a worker is transferred to a new contract under the same employer, you will need to update Supplement B of the I-9 to reflect the new work authorization details. So when the transfer is filed, the I-9 should be annotated with “240-Day Ext.” and entering the date the I-129 was submitted to USCIS.

Question: If you have returning H-2A workers, do you need to do a new I-9 for every time they come back under a new contract?

Answer: Yes, a new I-9 should be completed for each new contract year for H-2A workers, as their employment authorization must be verified at the start of each new contract. It’s just easiest to make sure nothing falls through the cracks to do a new one each season. Keep in mind that a worker’s I-9 in the audit file is not a single document - the I-9 is a combination of all the forms that have been executed by that worker over time. So if an H-2A worker has done a new I-9 for three straight seasons and there is an audit, the employer will provide all 3 of those. 

Question: If you are doing E-Verify that is not mandatory, can you decide not to participate?

Answer: If E-Verify is not mandatory in your jurisdiction or for your company, you may decide not to participate.

Question: What extra source can be used to check on revoked TPS?

Answer: The most reliable source to check on revoked TPS (Temporary Protected Status) is the USCIS website, where updates are posted about the status of TPS for specific countries. It can be fairly confusing, but a good rule of thumb is to check the facial validity of the document, the M-274, and cross-reference the USCIS website.

Question: Recently, an I-9 consultant advised a client to retain copies of the eligibility documentation (Columns A or B & C). Is this legally required?

Answer: No, retaining copies of the documentation is not legally required, but it is often recommended as a best practice. The important thing is to be consistent with whatever policy the employer decides to go with and either always or never collect copies of those documents and do not pick and choose. Only E-verify employers are required to collect copies of documents during the I-9 process.

Question: In Seso, we have the ability to send the link for H-2A employees to complete their portion of the I-9. In this case, should the employee select the translator option? It’s very common that, even though they complete the form themselves using their cellphone, the form is first explained and translated to them. Just wanted to confirm the correct approach moving forward.

Answer: Yes, if the employee is hands on helping or assisting the worker by acting as a translator, the Preparer/Translator section should be prepared. The form instruction state “Any individual who helps the employee complete or translateSection 1 for the employee.” Merely sending the link or providing a tablet would not be assisting or preparing, but actively translating or assisting the worker with putting in their information would. It would depend on the circumstances, but the great thing about the app is that the translator/preparer could be added in real time while the form is being completed.

Question: For E-verify participants, is it mandatory to stay as a participant?

Answer: Once you choose to participate in E-Verify, you are expected to remain in the program as long as you meet the legal requirements or until you voluntarily choose to exit the program. There are specific guidelines to terminate the relationship: https://www.e-verify.gov/supplemental-guide-for-e-verify-employer-agents-20-clients/23-terminate-client-participation

Question: If we have some staff that filled out the Spanish version, not knowing we couldn’t use it, how do we go about a new I-9? Do we just transfer the info over? But now, the dates could be a few years old. How is best to handle this?

Answer: Outside of Puerto Rico, the I-9 cannot be completed in Spanish. You should complete a new I-9 using the correct version of the form, attach the previous, incorrect version to the file, and do a written memo explaining what happened.

Question: E-Verify rules say that you cannot verify a person before being an employee. But if you contract someone without authorization, it's also illegal too. What's the best practice for using E-Verify?

Answer: Correct - the best practice is to submit E-Verify queries after an employee has accepted the job offer and completed Section 1 of the I-9 form. If someone cannot present valid documents for I-9 purposes, the employer should not make that hire. If the individual has fraudulent documents, the E-Verify system should catch that issue and notify the employer. 

Question: Have they done an ICE audit for prior seasons (if I am not doing an H-2A season currently)?

Answer: ICE audits do not have any connection to H-2A - they can take place at any U.S. employer. Employers should retain I-9s for 3 years from hire date or 1 year after termination, whichever is later.

Question: What if the employee doesn't have an SSN at all?

Answer: If an employee does not have an SSN, they can still complete the I-9 and backfill the document once the social security number is obtained.

Question: If I sit with my H-2A employee and review part one with them for spelling and dates etc. and they verify and sign are you leaning towards that no longer being acceptable?

Answer: Great question. If the employer is simply reviewing section 1 and then informing the worker of errors/mistakes and allowing the worker to make those corrections, I don’t think anything additional would be required. However, if you are translating or explaining the form and actively assisting the worker with completing the fields, that would probably cross over intro preparer/translator territory. In that case, the preparer/translator Supplement should probably be complete. Employers can absolutely review Section 1 with the employee for accuracy, but the employee must be the one to verify and sign the form.

Question: We have employees that return year after year. We have their original I-9 in a special book stored in a file & the returning reverification copies are in their current files. Both would be able to be produced stat. Would that be considered okay?

Answer: Yes, that sounds just fine as long as the I-9 forms are well-organized and retrievable for audits. Important that the I-9 an employer produces during an audit can mean multiple forms and iterations of the document and several Supplements over a long period of time. Great observation and it sounds like your paperwork is in order.

Question: After an ICE raid would then ICE request I-9s from employers and conduct an "audit" then?

Answer: Yes, after an ICE raid, ICE agents may request I-9 forms from the employer to conduct an audit to verify the legality of the employees' work authorization. Conversely, and maybe more likely, a routine ICE audit that uncovers evidence of large scale employment of undocumented workers could help provide evidence for a raid at a later date.

Final Thoughts

In today’s regulatory environment, I-9 compliance is more important than ever, especially for agricultural business owners who rely heavily on seasonal labor. With ICE enforcement ramping up and the agency's budget growing, it’s crucial to stay ahead of the game by keeping accurate, organized records and maintaining a structured, repeatable process. Implementing a digital solution like Seso’s I-9 product can help ensure your compliance, minimize risks, and give you peace of mind during an audit.

As a trusted authority in I-9 compliance, we at Seso are here to help guide you through the complexities of the process. Stay compliant, protect your business, and ensure your workforce is legally authorized to work—every season.

Take action today: Streamline your I-9 process with our digital solution to ensure compliance and avoid costly fines. Get in touch to learn more or request a demo!