When a company hires its first foreign-born employee, the compliance conversation often goes one of two ways: someone googles "how to hire a foreign worker" and gets a general overview, or the company relies on the employee to handle their own paperwork. Both approaches create liability. Immigration employer compliance has specific requirements that are easy to misunderstand and serious consequences for getting wrong.
This guide covers what you actually need to do, and what not to do, to hire foreign employees legally in the United States.
The I-9 Requirement: The Foundation of Employer Compliance
Every employer in the United States is required by law to verify the work authorization of every person they hire, regardless of whether that person is a US citizen, a permanent resident, or a foreign national with a visa. The I-9 form is the document that records this verification. There are no exceptions for small employers, no exceptions for remote workers, and no exceptions for contractors who are actually employees.
Failing to complete I-9s for all employees, completing them incorrectly, or not retaining them properly are among the most common employer immigration violations, and ICE worksite enforcement has increased scrutiny on exactly these errors.
How to Complete the I-9 Correctly
The I-9 has three sections, each with specific timing requirements.
Section 1 is completed by the employee on or before their first day of work. The employee provides their name, address, date of birth, citizenship or immigration status, and, if applicable, their alien registration number, I-94 number, or foreign passport number. Employers should provide the form to employees before their start date so Section 1 can be completed on time.
Section 2 is completed by the employer within three business days of the employee's start date (or on day one if the employment is for fewer than three days). The employer reviews original documents, records the document information, and signs Section 2. Section 3 is used for reverification when an employee's work authorization document expires and they present a new document establishing continued authorization.
Acceptable Documents: What You Can and Cannot Require
The I-9 establishes three lists of acceptable documents. List A documents establish both identity and work authorization on their own. Examples include a US passport, a Permanent Resident Card (green card), and an Employment Authorization Document (EAD). List B documents establish identity only, and List C documents establish work authorization only. Employees may present one List A document or one List B document combined with one List C document.
The critical compliance point here is what you cannot do: you cannot require an employee to present specific documents. You cannot tell a new hire "we need your passport" if they prefer to show a driver's license and a Social Security card. The employee has the legal right to choose which acceptable documents to present. Requiring specific documents, or rejecting documents that appear genuine on their face, is a form of document abuse that creates its own legal liability. You accept any combination of documents from the lists.
You must examine documents that appear genuine. You do not need to be a fraud expert. But if a document has obvious alterations, inconsistencies, or does not reasonably appear to be what it claims to be, you should note your concern. Knowingly accepting fraudulent documents is not a defense to hiring an unauthorized worker.
Remote Document Review
Historically, I-9 document review had to happen in person. During COVID, DHS created a temporary remote review option. Beginning in 2023, employers enrolled in E-Verify can use an authorized alternative procedure for remote document examination. This typically involves the employee sending clear copies of their documents digitally, and the employer conducting a live video interaction to confirm the documents match what was sent. Employers who use this alternative procedure must complete additional steps and notation on the I-9. The specifics evolve as DHS updates guidance, so verify current requirements before implementing a remote I-9 process.
E-Verify: What It Is and What It Is Not
E-Verify is a federal system that compares information from an employee's I-9 to records in DHS and Social Security Administration databases to confirm work authorization. Federal contractors and subcontractors are required to use E-Verify. Some states have enacted their own E-Verify mandates for some or all employers.
E-Verify is not a substitute for the I-9 and does not eliminate the requirement to complete one. If E-Verify returns a "Tentative Nonconfirmation" (TNC), meaning the records do not initially match, the employee has the right to contest it. Employers cannot take adverse action against an employee simply because of a TNC; they must follow the resolution process. E-Verify has a meaningful error rate for some populations, particularly recently naturalized citizens or people who have changed their name.
Two Distinct Hiring Situations: Work-Authorized vs. Sponsorship Required
There is an important distinction between two categories of foreign-born hires that many employers conflate.
The first category is employees who already have independent work authorization. This includes US permanent residents (green card holders), citizens who were born abroad, individuals on EADs (including spouses of H-1B workers, DACA recipients, and others), and individuals on OPT or STEM OPT. For these employees, your obligation is standard I-9 completion. You are not sponsoring their status; you are simply verifying that they have authorization to work.
The second category is employees who need your company to sponsor their visa. This includes most H-1B workers, O-1 workers, TN workers, and others where your company files the petition. In these cases, you are creating a legal obligation not just to verify their status but to actively maintain it -- paying filing fees, filing on time, paying prevailing wages, and meeting all the obligations that come with sponsorship. The timeline implications are also significant: an H-1B sponsorship from scratch takes six to seven months.
Legal Risks of Knowingly Hiring Unauthorized Workers
The penalties for I-9 violations and for hiring unauthorized workers are not the same. Technical I-9 paperwork violations (incorrect completion, missing signatures, timing errors) carry civil fines ranging from $281 to $2,789 per form for a first offense. Knowingly hiring or continuing to employ unauthorized workers carries much higher civil fines: $698 to $5,579 per unauthorized worker for a first offense, up to $27,018 per worker for subsequent violations. Criminal penalties apply for pattern or practice violations, including fines and imprisonment for individual decision-makers.
The distinction between a paperwork violation and a knowing violation matters, but ignorance of an employee's status is not always a defense if the circumstances would have put a reasonable employer on notice.
What Triggers an I-9 Audit
ICE conducts worksite enforcement audits through Notices of Inspection (NOIs) served on employers. Common triggers include tip complaints from former employees or competitors, industries with historically high non-compliance rates (construction, food service, hospitality, agriculture, and staffing agencies), and random selection. High-profile employers may also attract scrutiny for political or enforcement priority reasons.
When an NOI is received, employers typically have three business days to produce their I-9 forms. The time to fix problems is before the NOI arrives, not after.
Building an Immigration-Compliant Hiring Process
The practical steps to consistent compliance are straightforward:
- Complete I-9s for every new hire within the required timeframe, without exception.
- Track expiration dates. When an employee's work authorization document has an expiration date, calendar a reminder 90 days in advance to conduct reverification before it expires. Failing to reverify is a common technical violation.
- Conduct annual I-9 audits. Review your entire I-9 inventory once a year. Look for missing forms, timing errors, and expiring authorizations. Document your audit and correct technical errors using the proper correction procedure (line through the error, correct the information, initial and date the correction, never use white-out).
- Store I-9s properly. I-9s must be retained for three years after the hire date or one year after employment ends, whichever is later. Store them separately from personnel files so they can be produced efficiently in an audit.
When to Bring in an Immigration Advisor Before You Hire
If you are hiring your first foreign national who will require sponsorship, consult an immigration attorney before you extend an offer. The timeline, cost, and employer obligations are significant, and making an offer to a candidate before you understand what sponsoring them entails sets up bad outcomes for both sides.
If you have a workforce with multiple foreign nationals at different stages of their visa status, an annual immigration compliance review with an attorney is worthwhile. The cost of a review is a fraction of the cost of an audit finding or a fine.
For more context on the full range of immigration issues founders encounter, see the entrepreneur's guide to immigration. To browse immigration advisors, visit our immigration category.
