The I-9 Employee Verification Process Is Having a Midlife Crisis

After 40 years, the process that businesses must use to verify employment—Form I-9—needs a complete makeover.

Congress created the I-9 system as part of the Immigration Reform and Control Act of 1986. It represented a trade-off: It legalized a large portion of our country’s undocumented workforce but created new immigration compliance burdens for employers.

The law aims to deter unlawful migration by making it harder for unauthorized workers to find jobs. It also requires employers to participate in the immigration verification process, imposing burdens and monetary and criminal penalties on those who didn’t comply. Effectively, it deputizes employers as the front-line enforcers of US immigration law.

But the I-9 process had unintended consequences: It did little to deter unlawful employment; it gave unscrupulous employers more leverage over workers, and the process itself often burdens workers and businesses.

It’s time for an overhaul.

Need for Changes

Many employers, particularly in low-wage immigrant-dense industries, don’t comply with IRCA’s mandates.

In the law’s earliest years, compliance was dismal—a 1988 GAO survey—found roughly half of employers who were aware of IRCA hadn’t completed all required I-9s. More recently, the Department of Homeland Security’s Office of Inspector General found that 61% of employers were out of compliance.

Perhaps more insidious is that many employers weaponize the power granted to them by IRCA, which gives bad employers leverage over workers.

When employers control both the verification process and the continued employment of the worker being verified, potential coercion is built in.

During our tenures in the Department of Labor, the agency litigated a case in which a worker notified health and safety officials about a dangerous workplace hazard. Rather than immediately fix the problem, the employer instead called Immigration and Customs Enforcement and tried to get the worker deported.

Such unlawful employer conduct is widespread, particularly in low-wage industries.

E-Verify, a long-standing federal system that lawmakers in both parties are pushing to mandate more broadly, builds directly on the I-9 process by requiring employers to submit workers’ I-9 information into a Department of Homeland Security database for verification against federal records.

But E-Verify inherits the flaws of the broken I-9 foundation, relying on employers to use the system at the appropriate time (after hire and completion of the I-9 process), interpret results, and manage worker eligibility.

Workers who are legally authorized to work, including US citizens, can be flagged due to errors or mismatches they are never properly informed of or given a fair chance to correct, jeopardizing their jobs.

E-Verify also does nothing to address the employer’s ability to use immigration status against the worker. And many employers use E-Verify selectively, only for workers they know have valid work documents, while maintaining a paperless, highly exploitable workforce.

Modern Solutions

Instead of defaulting to the solutions of yesterday, lawmakers need to ensure that any system that replaces the I-9 regime has three core elements.

Legalization: The last 40 years have made clear that legalization isn’t just a humanitarian issue, but an economic issue that strengthens labor protections and raises standards for everyone. When millions of workers lack authorization, employers gain enormous leverage, harming the majority of businesses who are playing by the rules.

Wages and working conditions become depressed not because undocumented workers “accept less,” but because they can’t safely assert their rights. Legalization of undocumented workers would help remove the threat while also improving labor markets.

Verification: The current system, which places employers in a coercive intermediary role while doing little to reduce unauthorized employment, has failed. Any serious reform must grapple with how to prevent employers from weaponizing immigration status against workers, even if the precise structure of an alternative system remains contested.

At a minimum, reform should sever the link between verification and the employment relationship itself. A new system should reduce, rather than expand, the role employers play as de facto immigration enforcement agents, a role that puts them in obvious tension with their obligations as fair-hiring actors, and one that many small businesses lack the resources and expertise to carry out effectively.

Labor Enforcement: ICE’s budget has grown exponentially while the Department of Labor’s Wage and Hour Division operates on a 2024 budget of roughly 1% of ICE’s annual funding. The Trump administration has proposed cutting the Wage and Hour Division’s budget and eliminating more than 400 positions.

When deportation infrastructure is funded at 100 times the rate of worker protection, the coercive power that a broken verification system hands to employers doesn’t diminish—it compounds. As long as immigration status is tied to employment, employers hold leverage. The only effective counter to employers’ leverage over workers is vigorous labor standards enforcement.

The I-9 system needs the kind of honest reckoning that turning 40 is supposed to inspire: a clear-eyed look at what isn’t working, what never worked, and what a system worthy of the next 40 years would actually look like.

A real overhaul, rather than a patch or tweak, would take failures seriously and build something that actually serves the people.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Seema Nanda was the US Solicitor of Labor, and Emily Tulli was senior counsel to the US Solicitor of Labor, during the Biden administration. Both are fellows at Cornell University’s Migration and Human Rights Program and Workshop.

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