As immigration policies evolve and enforcement activity increases across organizations, I-9 and E-Verify compliance is more critical than ever. John Fay, immigration attorney and director of product strategy at Equifax Workforce Solutions, joins host Nicole Belyna to break down the latest updates to Form I-9, virtual verification, worksite enforcement, and what HR professionals need to know to protect their organizations and support their employees. This podcast is approved for .5 PDCs toward SHRM-CP and SHRM-SCP recertification. Listen to the complete episode to get your activity ID at the end. ID expires Sept. 1, 2026. Subscribe to Honest HR to get the latest episodes, expert insights, and additional resources delivered straight to your inbox: https://shrm.co/voegyz --- Explore SHRM’s all-new flagships. Content curated by experts. Created for you weekly. Each content journey features engaging podcasts, video, articles, and groundbreaking newsletters tailored to meet your unique needs in your organization and career. Learn More: https://shrm.co/coy63r
As immigration policies evolve and enforcement activity increases across organizations, I-9 and E-Verify compliance is more critical than ever. John Fay, immigration attorney and director of product strategy at Equifax Workforce Solutions, joins host Nicole Belyna to break down the latest updates to Form I-9, virtual verification, worksite enforcement, and what HR professionals need to know to protect their organizations and support their employees.
This podcast is approved for .5 PDCs toward SHRM-CP and SHRM-SCP recertification. Listen to the complete episode to get your activity ID at the end. ID expires Sept. 1, 2026.
Subscribe to Honest HR to get the latest episodes, expert insights, and additional resources delivered straight to your inbox: https://shrm.co/voegyz
---
Explore SHRM’s all-new flagships. Content curated by experts. Created for you weekly. Each content journey features engaging podcasts, video, articles, and groundbreaking newsletters tailored to meet your unique needs in your organization and career. Learn More: https://shrm.co/coy63r
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[00:00:27] Nicole: Welcome to Honest HR. I'm your host, Nicole Belyna. Coming to you from SHRM 25, our annual conference in San Diego. Today we're diving into a topic that's crucial for every HR professional to stay on top of as immigration policies shift and enforcement ramps up. Navigating updates from the E-Verify system and form I nine from ICE audits to virtual document review and evolving work authorization rules.
Our conversation today is focused on helping you protect your organization, support your employees, and stay ahead of compliance risks. We're joined by John Fay, director of Product Strategy at Equifax, workforce Solutions and Immigration Attorney. John is a leading expert in employment eligibility compliance.
Who's presenting on this topic at SHRM 25. Welcome to Honest HR, John.
[00:01:21] John Fay: Thank you so much for having me.
[00:01:23] Nicole: Yeah, it's my pleasure. So let's get right into it. First, let's start with the basics. What is an I nine and why is it such a big deal this year?
[00:01:33] John Fay: Absolutely. So the Form I nine is essentially one of those requirements that human resource managers and employers just generally have to keep track of because what it is is you have to complete a form I nine for every newly hired employee in the United States.
The idea behind it is essentially you wanna make sure that your individuals are authorized to work. So this actually dates back all the way to 1986 when, at the time President Reagan, essentially put in this requirement that said. Employers are essentially deputized, you know, congratulations, you, now got a job that you probably never wanted.
but you have to make sure that you are completing this form and that you are actually reviewing documents to ensure that the individuals not only authorized to work, but they say what they are, who they say they are, and really why this has become, I think, so important this year in particular is we've seen a lot of change in immigration and policy and immigration enforcement.
And what employers always have to remember is that the form I nine is an immigration form, so it is something that they have to do for immigration requirements. And so we've been seeing a lot of change this year, both in policy and also enforcement. And I think that's just really raising the importance of the form.
[00:02:48] Nicole: Great points. so a lot to keep track of for sure. Yes, for the average HR person. so when working within the I nine process, employers will come across the terms virtual I nine, electronic I nine. Explain the difference between the two.
[00:03:06] John Fay: Yeah. There we have a lot of, interesting terminology and so virtual is actually something that is called it's official name is the optional alternative procedure for reviewing documents.
Now that doesn't exactly roll off the tongue, hence we all call it virtual. But really what it is, in 2023, they came up with a policy that said that employers can actually review documents, remotely. Previously and for so many years, the requirement has always been when you're completing the 4, 9 9 and you're obviously seeing documents, you're seeing documents that show both identity and employment authorization, and that process is essentially always an in-person affair.
Well, in 2023 it changed, and all of a sudden there's this allowance where you can do. Virtually. And so that really has been a game changer for a lot of employers because, you know, obviously post pandemic, we see employers still hiring remotely quite a bit, but we've also seen just employers wanting to streamline their onboarding processes.
And so it really just opened things up. So that's virtual. And then electronic I nines is essentially just the process for completing it. So, you know, the form has, always been on paper, but then since, 2004, all of a sudden we are able to electronically generate and store and, retain those forms.
And so that's the difference between the two of those.
[00:04:29] Nicole: Sure. So just as a reminder for SHRM members, we do offer a toolkit that, talks about how to comply with I nines and E-Verify requirements. So, that link you can find in the additional resources on our website. So let's talk a little bit about work site enforcement.
How do notice of inspections or NOIs, of form I nines work? And has anything changed with the process this year?
[00:04:58] John Fay: Yeah, so one of the thing, one of the ways that I always describe the form I nine audit or notice of inspection is it's like the ultimate pop quiz. Because as employers, you know, as we've discussed, you're obviously supposed to complete these forms for all newly hired employees.
But what's interesting is you don't actually file it anywhere. there was a, Stanford law professor that said that the form I nine was probably the most completed federal form that's not actually filed with the government agency. Right. Instead, we all complete them or we should complete them. and then we just keep them and we wait for the government to show up.
And so the notice of inspection is, Hey, we're here. and so essentially it is generally governed by, department of Homeland Security, a specific, agency called Immigration and Customs Enforcement. And essentially the way it works is they can audit any employer in the United States. They, the notice of inspection, or NOI as you called it, is a template form.
They will serve it either in person or actually they can do it by mail. We've even seen it email that's a little bit different this year. and essentially what it does is it tells an employer that their four, my nines are going to be under inspection, and it gives them three federal business days to produce those documents as well as actually a lot of other documents as well.
And so it's a really potentially scary time for, HR and just employers in general because, you know, you, may have been completing them, you may have been doing them well, or you may not have, and then all of a sudden you get this very short window of time to actually turn them over. And then in terms of what's changed this year, we've just seen a whole lot more of them, you know, in during the last few years.
I would say that the format inspections, had really gone down a bit. But in, in kind of connection again with this immigration enforcement, we've seen a lot of notices of inspection really all over the country. Sure.
[00:06:51] Nicole: do you have any stats and some examples of, of ICE and HSI audit activity that can demonstrate the consequences of organizations not being ready?
And compliant.
[00:07:04] John Fay: Yeah, yeah, absolutely. there there are quite a few. And so, probably the most notable this year is, immigration and Customs Enforcement, or ICE as we refer to them. They've been very active on their, newsroom, on their website. So it's ice.gov and then newsroom. and so they actually find three employers about a total of $8 million, for a variety of I nine violations.
And these were just like, two of the employers had a hundred percent violations. one was pretty close behind, and they also were, allegations of un unauthorized employment as well. So, you know, that kind of stat, you know, the $8 million definitely rose some, you know, eyebrows. But then in addition to that, we've seen just a lot in the news.
So, back in May we started seeing additional audits really all over the country. There was a lot of, work site enforcement operations that started happening in larger cities. Los Angeles was certainly impacted. We've seen a lot of audits. in those areas. In addition, the DC area received over a hundred, 4 99 audit inspections, primarily targeting both restaurants and, hospitality.
So, you know, we've started to see, you know, occasionally see some specialization in terms of what they're looking for in terms of industries. But the other thing is employers always have to remember anybody can be audited, right? All employers have this responsibility.
[00:08:26] Nicole: Sure. Yeah. definitely a time of heightened awareness for HR professionals to be on their toes.
And so, what steps can HR teams take to, to develop a plan? For work site enforcement.
[00:08:42] John Fay: Yeah, I think there are a few things. Number one is just being prepared for when the government shows up, so that is really the number one thing that we're seeing employers do right now is really to have an audit preparedness plan, right?
I mean, you wanna make sure that your organization, your work site. Knows what to do when all of a sudden the government shows up. And so part of that really is having a detailed plan where, you know, like what your front office individuals or receptionists are doing. You wanna make sure that you have, like a contact, policy so you know who's gonna be contacted first in terms of your inside counsel, outside counsel.
Obviously you want to have procedures and protocols in place in terms of what you say to the government agencies, how you say it. Usually we'll have some sort of combination of, you know, making sure people stay calm and, make sure that at the same time that they don't grant more, You know, basically access what the government would be required to, understanding the different types of documents.
You know, the government might show up with a notice of inspection or they might show up with a judicial warrant, right? I mean, they, there could be a variety of different things. And so I think having that plan is really step one. And then beyond that, I think it's just, you know, looking at your own I nines and then trying to assess, okay, well, you know, if the government shows up, how would we fare?
Right? And if you don't feel like you would fare very well, that's when you would start going through perhaps like an internal audit type of thing.
[00:10:07] Nicole: Sure. Yeah. So I, was just gonna say, doing an internal audit. Is likely help helpful. Yeah. maybe doing it on a regular basis, but for sure if you haven't done one in a while Yes.
Now's the time.
[00:10:20] John Fay: Yes. And what's so interesting is employers, like I would say, or HR in general are so well aware of this, like, so for so many years. it would be, you know, the attorneys were going out saying, Hey, this is a good idea. Now it's the opposite. We have HR coming to us saying, Hey, we're already starting on the audit here.
You know, what, are some best practices? What should we consider? So it's already in the minds of so many, of HR representatives and I expect it to, continue.
[00:10:45] Nicole: Yeah, I bet. We just completed our internal audit not too long ago. Right. So, what about electronic I nine considerations for this action plan?
Do you have any special advice there?
[00:10:57] John Fay: Yeah, so since, since so many organizations are using electronic I nines, there has to be some consideration about, okay, what is a government going to ask when you are storing your I nines in the cloud, or you're, generating them electronically and as it turns out, there's a whole other body of regulations that.
Concerns how iion nines can be electronically generated, stored and produced, and some of those things like at audit trails, right? As one of the key components of electronic I nine electronic signatures, there's a lot of elements that can be requested by the government if. You are using electronic I nine now, you know, I'm not speaking poorly of electronic I nines because they're, actually great way to help, you know, prevent errors because many of them have error checking.
they allow you to go paperless. They allow you to do reporting. They allow you to do a lot of great things, but you just have to make sure that you understand. What's required from a regulatory perspective and that you're prepared to turn it over. Like one of the things that we always recommend is like, if you're creating this preparedness plan, make sure you have somebody in it.
Like, do you know how you can download the I nines? Do you know? You know, do you have a secure site in terms of where, you know, those I nines can be provided to the government since they have a lot of PII on them, right? Sure. So all of those things, again, just taking that electronic I nine component and building it into your preparedness plan.
[00:12:18] Nicole: That's a good point. And do you think just an internal audit is okay? Do you recommend that HR professionals reach out to a third party just to be. Safe, you know, better, safe than sorry.
[00:12:33] John Fay: I do. You know, I mean there certainly, there are a lot of very, very knowledgeable HR representatives. They've been doing this for years.
But there is something to say for having a third party, who can, you know, review those practices and policies because some, we have seen self-audits. Where they've actually made, you know, the process worse. Right. They, you know, we've seen like many years ago, people using white out, they're trying to hide mistakes.
They're, redoing I nines when they didn't really need to. there are a lot of different elements associated with it, and so using a third party representative can be very helpful. There's also something psychological about if you created, completed this four I nine, and then you're auditing it yourself, you may not see that same thing.
Right. It just helps to have somebody else involved.
[00:13:15] Nicole: That's a great point. And especially too, if there's turnover in your HR depart. Right. If you inherit a bunch of I nine documents it, I think it's always great, a good best practice to do those, audits when you Yes. Take over.
[00:13:29] John Fay: That reminds me, by the way, that's the number one question I get every single time I speak at SHRM.
Somebody in the audience will raise their hand and say, so I inherited a bunch of I nines. It always begins the same way. And that's, it's a very common thing. Yeah. And, it's difficult, right? 'cause all of a sudden you're in this new position, you didn't do this, and now all of a sudden you have to figure out, how can I resolve this issue?
[00:13:48] Nicole: Yeah. I'll tell you, whenever I take over a new HR team, that's the one of the first things that I do that's, yeah.
[00:13:54] John Fay: Understand.
[00:13:55] Nicole: All right, so moving on to immigration policy. So according to the 2025 SHRM report, the role of foreign born workers in the US labor force, there are more than 32 million foreign born individuals, ages 16 and older who are working in the US today.
So that's nearly 20% of the US labor force. So proper I nine. Compliance and workforce enforcement is critical for employers to understand. So having said all that, what must HR professionals understand about the many paths to work author authorization in the us?
[00:14:34] John Fay: Yeah. So I think the first thing to do is to understand just broadly how the, how they can be bucketized, so to speak.
So you as an employer may have certain types of immigration, related I nines for your sponsored individuals. So these are individuals that where you as an employer are actually filing a petition. Usually like an H one B visa, an L one visa. There's, a whole alphabet soup of them, but essentially you as the employer are involved and those, have some tricky elements to them, but I would, I find that generally employers are pretty good about them.
But then there's these other categories where individuals could have essentially a work permit and you have no idea what the basis of that is. Right? They could be, it could be, you know, a family based, immigration that, they're in, this process that gives 'em the ability to have a work. Permit, they could be a foreign student who just completed, their studies.
there could be a variety of things. It could be somebody on humanitarian parole or temporary protected status, which are two of the things that really have changed this year. And so those are just the things I think that employers have to understand. There are many different paths and making sure that you understand the different rules surrounding them.
we often like to say that we joke that the I nine form. has a, I think a hundred and some page manual for it. And most of that, by the way, is on these foreign national situations.
[00:15:54] Nicole: So. How have recent changes to humanitarian parole and temporary protected status impacted employees working in these programs that allow people to enter or stay in the US temporarily due to urgent humanitarian needs and unsafe conditions in their home countries?
[00:16:12] John Fay: Yeah, and I would say there, there really has been two things that have impacted employers. So number one is there's just a lot of volatility. So under these programs, humanitarian parole, temporary Protected status, the current administration has terminated, hu the, humanitarian parole for a group of individuals.
They're, called CHNV, so it's Cuban, Haitians, Nicaraguans, and Venezuelans. And the, issue with this is, as a lot of things, is there's a lot of litigation around it. So we've seen litigation back and forth. There's been a time period where all of a sudden this termination was gonna go into effect, and then all of a sudden it wasn't gonna go into effect.
And so as an employer, you're trying to figure out, well, do I have a authorized workforce and do I need to do anything about it? So there's that volatility on the one side, and then on the other side, you have to make sure that you are. Keeping up to date, not only with all of these changes, but that you're also thinking about your own workforce planning.
Right? So depending upon your industry and organization, you might have a lot of individuals who are affected. We've, seen some industries, again, such as like hospitality, agriculture. we've seen some in staffing who have been, who get very impacted by these sudden immigration changes. So they have to think about, well, all of a sudden, if this happens.
What's gonna be the impact in my workforce? Am I still gonna, you know, am I gonna have to hire new people? There's just a lot of different things that HR has to really consider and think about.
[00:17:39] Nicole: All right, so let's talk about examining documentation. Yeah. Avoiding discrimination when examining I nines is a delicate balancing act for sure.
What are some do's and don'ts to ensure the process is fair and unbiased?
[00:17:53] John Fay: Yeah, so I think the first thing to recognize is there's this thing called the list of acceptable documents. And by the way, if you're a fan of acronyms, that would be load. and we think that's appropriate. 'cause it is a lot of stuff to remember.
And one of the things to do, it's, like I 9 1 0 1, but again, I, I've seen mistakes is that's always what you, we have to start with you when you're talking to an employee. And you're having them complete the form I nine, give them the list of acceptable documents and always make sure that they are the ones who are choosing what to present.
That's like the, first thing to consider from a, from an unfair or, a discrimination type of perspective. We've seen at some instances where, for example, an employer just tried to be helpful and they say like, well, you know, these are the two different documents which you, know, most of our.
Employees will, present, and maybe the individual doesn't have those documents, they have something else, but it's valid, right? So just making sure that you are always giving them that list of acceptable documents. You're not specifying a specific document and you're also just essentially treating them the same.
So that's really the mantra with I nine. You never want to treat somebody differently. Based on their protected class. And so that would be citizenship status, national origin or immigration status. And so that's really, you know, and that can be tough because all of a sudden now you've got these immigration policy changes and you might be thinking, well, gee, I need to go and look at all of my I nines and try to suss out who's from what country and what type of document.
And on the other hand, I got this thing telling me, well, I can't treat anybody differently. So it, really is a delicate balancing act.
[00:19:26] Nicole: It is. Yeah. I've seen in a self-audit in the past, you know, where someone tried to, you know, just cover all their bases and so that somebody must have brought in multiple forms of documentation.
They're like, I'll just include all of them in the document to be safe. Yeah. You know?
[00:19:42] John Fay: Yeah. And what's interesting about that, 'cause we see that all the time, is that the Department of Justice came out and said. That type of behavior, like asking, even if you're not doing it with any kind of animus or malice in mind, can is still a textbook definition of discrimination because you're treating somebody differently based upon their protected class.
And so, yeah, it's really tough, but because I know I, a lot of, you know, really just HR people are just trying to be helpful and they just say, well, more's better, but not necessarily with I nines.
[00:20:12] Nicole: So what advice do you have for HR professionals, proactively processing and managing I nine documentation?
[00:20:20] John Fay: Yeah, so I think, you know, we've talked about some of this already, but I think certainly just making sure that you treat the I nine, as a. A potential risk, right? And then you elevate it even within your organization. There are a lot of different elements associated with that. Obviously there's audit risk, there's discrimination risk, and obviously we feel at least the audit risk in particular has been growing.
And so what we always recommend is just that, making sure that the entire organization understands that the four i nine. It's not just a, you know, another form of paperwork, it is actually a legal obligation. It has a lot of associated risks with it. And so from, you know, once you have that little baseline, then it's all about putting in processes and procedures really to make sure that you are not only keeping up to date with all the different changes in this area, but then also that you have a practice in place to complete it properly.
Right. And so as part of that, you know, we always recommend training. So training is really. Integral to the four I nine. Right? Because you just, you know, even, if you've done this so many times, there's something you can always learn about, this process. So we, recommend always, at least in maybe a couple times a year, you just, whoever is completing the four i nine process, that they go through some sort of formal training.
Yeah.
[00:21:35] Nicole: Great idea. What about, requirements and best practices for the virtual I nine option?
[00:21:41] John Fay: Yeah, so with, virtual, it's really first and foremost understanding, you know, really what's involved. So the virtual requires you to have this, live video interaction, right? And so employers have to understand how that's going to be.
Set up, how are, what are the mechanics of it? How are they actually going to do that? They need to understand that during that live video interaction, they not only need to see the individual, they need to see the real document. That's one of the, common mistakes that we see is people will, you know, start doing this process and then meanwhile they just have it on their phone or something like that.
That needs to be an actual document that somebody's holding during this, video, interaction, making sure that you have, you know, that whole scheduling ask. you know, buttoned up and understand how that works. there are other requirements such as, you know, having copies of both, sides, of all the documents that's generally new for virtual.
and then I think in addition to that, just really from an executive, you know, level, you know, when are we going to do it? Are we going to do it? Are we gonna offer it for all employees? Are we only gonna do it for remote employees? you know, those are other things that I think employers should consider with virtual.
[00:22:49] Nicole: Yeah. Really, really great points. All right. so just a couple more questions for you. SHRM's report on foreign-born workers also notes that the US population continues to age and immigration is discussed as a key tool for meeting labor demand. So how do you expect the immigration policy and enforcement landscape to change over the next couple of years?
And what can HR professionals do to best prepare.
[00:23:17] John Fay: So, I mean, it certainly has been very dynamic so far. We've only been six months, into the current administration. There's been so many changes to immigration. We, would fully expect, that there will be additional changes as well. And I think really from an HR perspective, you have to just look at this from as broad up.
Broad perspective as possible. This is not only gonna impact your I nines, it might impact your, sponsorship of individuals, right? So you might have in, you might have jobs or occupations that you have traditionally needed to fulfill with foreign talent. You'll need to look at that because we obviously expect to see some tightening of immigration controls and processes.
we saw this during, the Trump's first administration. We would certainly expect to see the same. So, so far, like. Some of the business immigration elements like H one Bs and others haven't essentially been touched too much yet, but we would expect to see potential. there could also be changes or, restrictions relating to certain types of documentation.
One of the things that we often talk about is A is an EAD, which is an employment authorization document. Right now there's a provision that allows people, many of them. To, essentially continue working for a period up to 540 days when they're extending. that has already come under attack. So we have to look to see whether that policy is gonna be changing.
There's a lot of different things. So I think, again, from an HR kind of like preparedness perspective, it's recognizing that, and then just trying to keep up to date with all of these things.
[00:24:45] Nicole: Any final pieces of advice for HR professionals in this area?
[00:24:49] John Fay: It's just, you know, it's always changing. and so I, I definitely, I, highly recommend that individuals, you know, really try to, you know, subscribe to a blog, you know, attend, go to webinars relating to this topic.
it seems we al we like to joke the saying like, well, you know, this is the rule as of today because, you know, it's just constantly changing. And so I think it's really important to keep up to date. And then again, we've, talked about it. For, but I just think, you know, doing these like kind of self-audits, self reviews, extremely important.
And then making sure that you have training throughout your processes.
[00:25:23] Nicole: Right? So self-audits, training, having great resources at your fingertips is the best approach.
[00:25:29] John Fay: Absolutely.
[00:25:29] Nicole: Great. Well that's gonna do it for this week's episode of Honest HR. A big thank you to you, John, for sharing your insights with us.
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