This article is intended for general educational purposes only and does not constitute legal advice. Employers should consult qualified immigration and employment counsel before implementing or modifying their I-9, E-Verify, or hiring compliance programs.

Introduction

Every U.S. employer, regardless of size, industry, or location, is subject to a framework of federal and state laws governing who may lawfully work within the United States and under what conditions. Three interrelated but legally distinct concepts lie at the heart of employment eligibility compliance: the federal requirement to verify work authorization through Form I-9, the voluntary (and sometimes mandatory) electronic verification system known as E-Verify, and the body of state “Right to Work” laws that regulate union security arrangements in the workplace. Although these topics are sometimes conflated in everyday business conversations, they address fundamentally different legal questions, carry different compliance obligations, and impose different penalties for non-compliance.

This article provides a comprehensive overview of each area, explains the practical steps employers must take to comply, identifies the most common pitfalls, and highlights the significant legal consequences that flow from violations. Given the heightened pace of immigration enforcement in recent years, and the ongoing complexity of state employment law, maintaining a robust and well-documented compliance program has never been more important.

Part I: Right to Work Laws

What “Right to Work” Actually Means

The term “Right to Work” is one of the most misunderstood phrases in American employment law. Many employees and even some business owners incorrectly believe that it refers to an individual’s general right to hold a job, or to at-will employment principles. In fact, Right to Work laws have nothing to do with either concept. They refer specifically to state laws that prohibit agreements between employers and labor unions that make union membership or the payment of union dues a condition of employment.

Under the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., federal law permits certain types of “union security agreements.” A union security agreement is a contract clause, negotiated as part of a collective bargaining agreement, that can require employees to join a union or, more commonly, to pay fees equivalent to union dues as a condition of maintaining their employment. The rationale advanced by organized labor is that because unions are legally required to represent all workers in a bargaining unit — including non-members — it is only fair that all workers contribute financially to the cost of that representation. This arrangement is sometimes called an “agency shop.”

Right to Work laws, authorized under Section 14(b) of the NLRA, allow states to prohibit such agreements entirely within their borders. In a Right to Work state, no employee can be compelled to join a union or pay union dues or fees as a condition of employment, even if a majority of their colleagues voted to unionize and even if a collective bargaining agreement is in place. Employees in Right to Work states can enjoy the benefits of collective bargaining without contributing to its costs, a phenomenon that critics describe as “free riding.”

States With Right to Work Laws

As of early 2026, the following states have enacted Right to Work statutes or constitutional provisions: Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming. West Virginia enacted a Right to Work law in 2016, though it has been subject to ongoing litigation. Michigan, which adopted a Right to Work law in 2012, repealed it in 2023, making Michigan a notable example of a state that moved in the opposite direction.

It is essential for multi-state employers to understand that Right to Work status is determined at the state level. A company operating facilities in both Texas (a Right to Work state) and Illinois (a non-Right to Work state) must apply different rules at each location. Collective bargaining agreements that include union security clauses may be lawful and fully enforceable in Illinois while being void and unenforceable as applied to the Texas workforce.

Practical Implications for Employers

For most non-unionized employers, Right to Work laws have limited direct operational impact. However, several practical considerations deserve attention. First, employers operating in industries with historically strong union presence — construction, manufacturing, hospitality, healthcare — should understand whether their workforce or their industry partners are located in Right to Work states, as this affects collective bargaining dynamics and organizing campaigns. Second, employers that acquire businesses through mergers or asset purchases may inherit existing collective bargaining agreements with union security clauses; the enforceability of those clauses in the new employer’s operating states requires immediate legal review.

Third, and perhaps most importantly, employers should not confuse Right to Work with at-will employment. At-will employment — the doctrine that an employee can be terminated for any reason or no reason, absent a contract or statutory protection — is a separate legal concept governed by different bodies of law and exists in nearly all U.S. states to some degree. A Right to Work state may have robust anti-discrimination laws, whistleblower protections, and other limitations on an employer’s right to discharge. Treating “Right to Work” as synonymous with the freedom to terminate employees at will is a misunderstanding that can lead to significant legal exposure.

Finally, employers should be aware that Right to Work does not affect an employer’s obligation to bargain in good faith with a certified union. Even in a Right to Work state, if employees have voted to be represented by a union, the employer must engage in collective bargaining. The employer simply cannot enforce a union security clause requiring membership or dues payment.

Part II: Form I-9 — Employment Eligibility Verification

The Legal Foundation

The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. 99-603, established the Form I-9 process and created the fundamental obligation that all U.S. employers face today: before an individual may begin work for pay, the employer must verify that the person is authorized to work in the United States. This obligation applies universally. There is no exemption for small employers, no exemption based on the worker’s nationality, and no exemption because an employer “doesn’t hire immigrants.” Every new hire, regardless of citizenship, national origin, or visa status, must complete the I-9 process.

Form I-9 is issued by the U.S. Citizenship and Immigration Services (USCIS) and is the mechanism through which employers satisfy their IRCA verification obligations. The current version of Form I-9 is the November 1, 2023 edition, and employers must use only the current version; older versions are not acceptable.

The Three-Section Structure

Form I-9 consists of three sections, each with distinct completion requirements. Section 1 must be completed by the employee on or before the first day of employment. In Section 1, the employee attests under penalty of perjury to their name, date of birth, address, and immigration status. The employee also indicates whether they are a U.S. citizen, a noncitizen national, a lawful permanent resident, or an alien authorized to work until a specific date. Errors in Section 1 are the employee’s primary responsibility, though employers have a duty to review the section for completeness and obvious errors.

Section 2 must be completed by the employer (or an authorized employer representative) within three business days of the employee’s first day of work for pay. In Section 2, the employer examines original, unexpired documents presented by the employee from the Lists of Acceptable Documents (Lists A, B, and C) that appear on the form’s instructions. The employer must physically examine the documents for authenticity, record the document type, issuing authority, document number, and expiration date, and attest under penalty of perjury that the documents appear genuine and relate to the individual presenting them. Employers may not specify which documents an employee must present; the employee has the right to choose any acceptable document or combination of documents from the lists.

Section 3 is used for reverification and rehires. If an employee’s work authorization has an expiration date, the employer must complete Section 3 before that expiration. If a rehire occurs within three years of the original I-9 date, the employer may complete Section 3 on the existing form rather than creating a new one.

Remote Verification: Authorized Representatives

Historically, Section 2 required in-person examination of documents by the employer or a designated agent. The COVID-19 pandemic prompted USCIS to introduce temporary flexibility allowing remote document review, but that flexibility expired in 2023. At the same time, in August 2023, USCIS introduced a permanent alternative procedure that permits certain employers enrolled in E-Verify to conduct remote document examination using video technology, provided specific protocols are followed. Employers not enrolled in E-Verify must conduct in-person document examination, though they may designate an authorized representative — any person of the employer’s choosing, including a notary public, attorney, or even a trusted colleague in a remote city — to complete Section 2 on their behalf. The employer remains legally responsible for the actions of its authorized representative.

Acceptable Documents

List A documents establish both identity and employment authorization with a single document. Common List A documents include a U.S. passport or passport card, a Permanent Resident Card (Green Card), an Employment Authorization Document (EAD), and certain foreign passports with accompanying authorization. List B documents establish identity only (e.g., a state-issued driver’s license or ID card), while List C documents establish work authorization only (e.g., a Social Security card or a birth certificate). When an employee presents a List B document, they must also present a List C document; together, the combination satisfies the verification requirement.

Employers frequently encounter questions about automatic extensions of EADs, “receipt rules” for documents that have been applied for but not yet received, and the treatment of certain conditional status documents. USCIS publishes detailed guidance on these scenarios, and employers should ensure their I-9 administrators are familiar with it. Accepting facially invalid documents, or rejecting valid documents because they appear unfamiliar, are both common and serious errors.

Anti-Discrimination Protections

A critical and sometimes overlooked aspect of the I-9 process is that IRCA also contains robust anti-discrimination provisions, enforced by the Civil Rights Division of the Department of Justice through its Immigrant and Employee Rights Section (IER). It is unlawful for employers to discriminate in hiring, firing, or document request practices based on an individual’s citizenship status or national origin (for employers with four or more employees). More specifically, employers may not engage in “document abuse” by requesting more or different documents than are required, or by rejecting valid documents because of the employee’s perceived citizenship or national origin. An employer who demands a Green Card from someone who appears foreign-born but presents a valid U.S. passport has potentially committed document abuse. Enforcement actions by IER have resulted in substantial settlements and civil penalties.

Retention and Storage Requirements

Employers must retain completed I-9 forms for all current employees. For terminated employees, the retention period is the longer of: (1) three years from the date of hire, or (2) one year from the date of termination. A simple formula to remember is that I-9s must be kept for at least three years from the hire date, but if the employee works for longer than two years, the form must be kept for one year after termination.

I-9 forms may be retained in paper or electronic form, or a combination of both. If using electronic storage, the system must include reasonable controls to ensure the integrity, accuracy, and reliability of the records; an audit trail; and the ability to reproduce legible copies. Employers may not retain I-9 forms in personnel files; USCIS recommends maintaining them in a separate binder or electronic repository to facilitate audits.

Audits and Inspections

U.S. Immigration and Customs Enforcement (ICE) has broad authority to conduct I-9 audits. Employers receive a Notice of Inspection (NOI) requiring production of I-9 forms (and, in E-Verify contexts, related records) typically within three business days. ICE audits have increased substantially in recent years and have targeted employers across virtually every industry sector. An audit can result in a finding of technical or substantive violations, leading to civil monetary penalties, or, in cases of knowing and willful violations, criminal prosecution.

Civil penalties for I-9 violations are substantial and are adjusted annually for inflation. As of 2025, penalties for paperwork violations (failing to properly complete, retain, or make available I-9 forms) range from approximately $281 to $2,789 per violation. Penalties for knowingly hiring or continuing to employ unauthorized workers range from approximately $698 to $5,579 per worker for a first offense, with escalating ranges for second and third offenses reaching as high as $22,016 per unauthorized worker for repeat violators. Pattern or practice violations can result in additional criminal fines and imprisonment.

Part III: E-Verify

What E-Verify Is

E-Verify is an internet-based system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of newly hired employees. E-Verify compares information from an employee’s Form I-9 against records in DHS and SSA databases to confirm work authorization. The system provides an almost-immediate result: either an “Employment Authorized” response or a “Tentative Nonconfirmation” (TNC) that requires further action.

E-Verify is not a replacement for Form I-9; it is an additional layer of verification on top of the I-9 process. Employers enrolled in E-Verify must still complete Form I-9 for every new hire. Notably, E-Verify does not verify identity — it only confirms that the document numbers recorded in Section 2 of the I-9 correspond to a person who is authorized to work in the United States. A sophisticated fraud involving stolen identity documents can still defeat E-Verify, which is why physical document examination at the I-9 stage remains essential.

Who Must Use E-Verify

At the federal level, E-Verify is not universally mandatory for private employers. However, it is mandatory for federal contractors and subcontractors subject to the Federal Acquisition Regulation (FAR) E-Verify clause. The FAR clause, at 48 C.F.R. § 22.1802, requires contractors that receive federal contracts of $150,000 or more to enroll in E-Verify and use it for all new hires and for existing employees directly working on the covered contract. The enrollment and verification must typically occur within 30 days of contract award.

Beyond the federal contractor mandate, a growing number of states have enacted their own E-Verify requirements. As of 2026, states including Alabama, Arizona, Georgia, Indiana, Mississippi, North Carolina, South Carolina, Tennessee, Utah, and others require some or all employers to use E-Verify for new hires. The specific scope of these requirements varies: some states mandate E-Verify for all private employers; others limit the requirement to employers above a certain size threshold or to public employers and their contractors. Multi-state employers must track the E-Verify mandate status in each state where they operate.

How E-Verify Works in Practice

Once enrolled, an employer must initiate an E-Verify case for each new hire no later than three business days after the employee’s first day of work for pay — the same deadline that applies to completing Section 2 of the Form I-9. The employer enters identifying information (name, date of birth, Social Security number, and document information) into the E-Verify system, and the system returns a result, typically within seconds.

An “Employment Authorized” result means the information matched successfully and no further action is required under E-Verify (though the employer still retains the I-9 obligation). A “Tentative Nonconfirmation” (TNC) means the information did not match records in DHS or SSA databases. This is not an automatic finding of unauthorized status; TNCs are frequently issued due to data entry errors, name changes, naturalization records that have not been updated, or database discrepancies. Critically, employers must notify the employee of a TNC and give the employee the opportunity to contest it. An employer may not take adverse action — including terminating or suspending the employee — based solely on a TNC while the TNC is pending resolution. Only a “Final Nonconfirmation” (FNC) result, after the employee has had the opportunity to contest, provides a basis (and, for enrolled employers, a legal obligation) to terminate employment.

E-Verify Self Check and Other Features

DHS also operates “myE-Verify,” a self-service portal that allows individuals to check their own employment eligibility status before accepting a job offer, and to lock their Social Security number against unauthorized use in E-Verify. Employers may wish to inform employees and job applicants of this resource, particularly in industries with high identity fraud risk.

Photo Matching

E-Verify includes a photo matching tool that displays the photo from certain DHS-issued documents (Permanent Resident Cards, Employment Authorization Documents, and U.S. passports and passport cards) and asks the employer to compare the photo on the document physically presented by the employee with the photo displayed by E-Verify. This feature provides an additional layer of verification and helps detect fraudulent documents. Employers must compare photos even if the E-Verify result is “Employment Authorized” and must not use the E-Verify photo as a standalone verification tool.

Penalties for Misuse

Employers who use E-Verify improperly face significant legal exposure. It is a violation of the Memorandum of Understanding (MOU) that all E-Verify participants sign to use E-Verify for pre-employment screening before an offer of employment is accepted, to screen existing employees hired before enrollment (with limited exceptions for federal contractors), or to discriminate based on E-Verify results in violation of anti-discrimination laws. Misuse of E-Verify can result in termination of the employer’s E-Verify access, civil penalties, and potential criminal liability. Given that E-Verify is increasingly being mandated as a condition of government contracting and state law compliance, loss of E-Verify access can have severe operational consequences.

Part IV: The Interrelationship Between Right to Work, Form I-9, and E-Verify

While Right to Work, Form I-9, and E-Verify are legally distinct concepts, they converge in meaningful ways for the practicing employer. All three are triggered by the act of hiring, and all three must be administered accurately and consistently to avoid legal liability. Employers who focus on only one of these areas while neglecting the others are exposed to unnecessary risk.

The most immediate compliance intersection for most employers is between I-9 and E-Verify. As described above, E-Verify is an add-on to the I-9 process, not a replacement. Employers who are required to use E-Verify (by federal contractor obligation or state law) must still maintain complete and accurate I-9 forms. Discrepancies between I-9 records and E-Verify case records are a red flag during ICE audits and can suggest systemic non-compliance.

Right to Work intersects with the other two concepts primarily in the context of organized labor and workforce demographics. Employers in Right to Work states who operate under collective bargaining agreements should ensure that their I-9 and E-Verify procedures are addressed in their labor relations policies and, where relevant, in their CBA negotiations. While unions do not control I-9 compliance, labor agreements may affect how and when new employees are onboarded, which in turn affects I-9 completion timelines.

From a broader HR compliance perspective, employers should approach these three areas as part of an integrated employment law compliance program rather than treating each as a standalone obligation. Workforce audits, regular I-9 self-audits, E-Verify case review, and up-to-date training for HR personnel are all components of a program that reduces legal risk across all three areas simultaneously.

Part V: Best Practices for Employer Compliance

Designate and Train I-9 Administrators

Form I-9 is deceptively complex. USCIS’s I-9 Central website and its M-274 Handbook for Employers run to dozens of pages of detailed guidance, and the rules change with some regularity. Employers should designate specific individuals as I-9 administrators, ensure those individuals receive initial and refresher training, and establish clear written procedures for completing, retaining, and auditing I-9 forms. Training should cover not only how to complete the form but also the anti-discrimination provisions of IRCA, so that administrators understand the limits of their document review authority.

Conduct Regular Internal I-9 Audits

Proactive, periodic self-audits of I-9 forms are one of the most effective risk-management tools available to employers. A self-audit allows employers to identify and correct technical violations before they are discovered by ICE. USCIS guidance permits employers to correct technical errors — such as a missing date, an unchecked box, or a transposed document number — by drawing a line through the error, entering the correct information, and initialing and dating the correction. Substantive errors are more serious and may require consultation with counsel. Employers should not, however, destroy or alter I-9 forms in a way that could be construed as obstruction.

Establish a Tickler System for Reverification

For employees whose work authorization has an expiration date, employers must reverify employment authorization before expiration by completing Section 3 of the I-9 form. Failing to reverify can result in the employer unknowingly employing an individual whose authorization has lapsed, which triggers liability for knowingly continuing to employ an unauthorized worker. A reliable calendaring or tickler system — whether manual or software-based — is essential for tracking reverification deadlines across a large workforce.

Develop a TNC Response Protocol

For employers enrolled in E-Verify, every member of the HR team responsible for I-9 and E-Verify administration must be trained on the proper procedures for handling Tentative Nonconfirmations. The employee must be notified promptly, given a clear written explanation of their right to contest the TNC, provided with the appropriate referral letter, and allowed sufficient time to contest. Adverse action before an FNC is issued is unlawful and has resulted in enforcement actions by both DHS and the DOJ’s Immigrant and Employee Rights Section. A documented, consistently followed TNC protocol is both a legal safeguard and evidence of good faith compliance.

Monitor State Law Developments

Both Right to Work and E-Verify law continue to evolve at the state level. Michigan’s 2023 repeal of its Right to Work statute was a significant development. State legislatures regularly introduce bills expanding or modifying E-Verify requirements. Employers with multi-state operations should either maintain in-house compliance counsel with expertise in state employment law or retain outside counsel who tracks legislative developments across their operating states. Waiting until a state law change takes effect before updating internal policies and procedures is a recipe for non-compliance.

Create a Document Retention Protocol

Retention of I-9 forms is a legal requirement, and destruction of I-9 forms for terminated employees who are past the retention period is equally important for data privacy reasons and to prevent unnecessary document production in audits. Employers should establish a clear written protocol for I-9 retention and purge schedules, ensure that the protocol is consistently followed, and document the purge process. Given the sensitivity of the information on I-9 forms — Social Security numbers, passport numbers, and immigration status — secure storage and controlled access are also critical.

Conclusion

Right to Work, Form I-9, and E-Verify represent three distinct but critically important areas of compliance for U.S. employers. Right to Work laws determine the permissible scope of union security arrangements and vary significantly by state, demanding careful attention from employers operating across state lines or in unionized industries. Form I-9 is a universal obligation that applies to every U.S. employer without exception, and its proper administration requires ongoing training, consistent procedures, and diligent record-keeping. E-Verify adds a powerful electronic verification layer that is mandatory for federal contractors and a growing number of state-regulated employers, but its use must comply with strict procedural requirements to avoid discrimination liability and misuse penalties.

The consequences of non-compliance in any of these areas are substantial: civil monetary penalties, debarment from federal contracting, criminal prosecution in egregious cases, and civil rights liability for discriminatory practices. By contrast, employers who invest in robust compliance programs — trained administrators, regular self-audits, documented procedures, and proactive legal counsel — materially reduce their legal exposure and position themselves to respond effectively to government inquiries.

We encourage employers who have questions about their I-9 practices, E-Verify obligations, or Right to Work compliance to consult with experienced employment and immigration counsel. The regulatory environment in these areas is dynamic, and the cost of proactive legal advice is invariably less than the cost of responding to a government audit or enforcement action after the fact.

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This article was prepared by the Employment Law Practice Group for general informational and educational purposes. It does not constitute legal advice and does not create an attorney-client relationship. The law in this area changes frequently; readers should verify current requirements with qualified counsel before taking any action in reliance on this article. Attorney advertising: prior results do not guarantee a similar outcome.