As you may know, federal law requires employers to complete a Form I-9 for each employee they hire to verify the employee’s identity and authorization to work in the United States. Employers must keep those forms and make them available for inspection by the federal government.
You’re also probably aware that immigration enforcement has increased significantly over the past year, and that increased enforcement has created considerable tension between the federal government and states such as Washington over immigration policy and enforcement.
Washington has now responded to increased federal immigration enforcement with a new law that places new requirements on employers, ostensibly to provide employees with greater notice when federal immigration authorities take enforcement action at Washington workplaces.
Specifically, beginning October 1, Washington’s new Immigrant Worker Protection Act requires employers to notify workers when the federal government seeks to inspect their I-9 records, gives employees certain rights during that process, and requires employers to post a new workplace notice explaining those rights. The Washington Attorney General has also issued guidance telling employers what they should, and should not, do if federal immigration officials show up at the workplace.
Regardless of where you fall on the broader immigration debate, here are the rules that will go into effect on October 1.
If the Government Wants to Inspect Your I-9s, You Need to Notify Your Employees
Federal immigration authorities can inspect an employer’s Forms I-9 and related records. An inspection generally starts with a Notice of Inspection, and federal law ordinarily gives the employer at least three business days to produce the requested records.
Washington’s new law adds another deadline. Within five business days of receiving notice of an I-9 inspection, the employer must notify its workers about the inspection. The notice must include a copy of the federal Notice of Inspection and information about the agency conducting the inspection and the records being requested. Employers must both post the notice at the workplace and send it directly to workers using the business’s normal method of communication, such as email or text. The Attorney General has created a model notice that employers can use.
Employees May Need to Be Notified Again After the Inspection
If the federal government completes its inspection and identifies a problem with a particular employee’s I-9 or work authorization, the employer has another five business days to notify that employee. The employer must provide the employee with the government’s findings, explain the identified problem and any deadline for correcting it, and provide information about the employee’s opportunity to meet with the employer and have a representative present. If the government’s notice includes information about other employees, that information must be redacted before the notice is provided to the affected employee.
What If Immigration Agents Show Up at Your Business?
So, what should an employer do if federal immigration agents actually show up at your workplace? As a general matter, federal officials do not need a judicial warrant to inspect I-9 records after providing the required Notice of Inspection. That does not mean, however, that immigration agents have unrestricted access to the workplace.
Agents generally may enter areas of a business that are open to the public. To enter nonpublic areas, however, they generally need either the employer’s consent or a judicial warrant. A judicial warrant is one signed by a judge; an administrative warrant or other document issued by an immigration agency generally does not provide the same authority to enter nonpublic areas.
So, while an employer must comply with a lawful I-9 inspection, it generally does not have to allow immigration agents into private areas of the workplace simply because they ask to enter.
What About Independent Contractors?
These new requirements generally will not apply to businesses that use independent contractors, because federal law generally does not require businesses to complete I-9s for independent contractors.
Briefly, while businesses are prohibited from knowingly contracting with an independent contractor who is not authorized to work in the United States, the law does not require them to verify the employment authorization of independent contractors or complete I-9s for them.
Accordingly, because there generally are no I-9s to inspect for independent contractors, the new Washington inspection and notice requirements generally will not apply to them. Of course, this is not a “loophole” to call somebody an independent contractor and thus avoid having to comply with these requirements. In instances of misclassification, the federal government can determine that the worker is actually an employee, in which case the employer may have violated the I-9 requirements by failing to complete and maintain an I-9 for that worker in the first place.
There’s a New Workplace Poster
The new law also requires employers to post the Attorney General’s Immigrant Worker Protection Act poster wherever they normally post required employee notices. Employers should download the poster, complete the employer-specific portion, and add it to their other workplace postings by October 1.
What Should Employers Do Now?
The Washington Attorney General has published the required workplace poster, model employee notices, and guidance explaining the new requirements. You can review the guidance and download the required poster and model notices here.
And again, the new requirements take effect October 1, 2026, so make sure you have the new poster up by then.