As President Donald Trump settles into his second term, immigration policy is ramping up to focus heavily on immigration compliance and worksite enforcement. In particular, one key area of focus involves increased scrutiny surrounding employment eligibility verification and Form I-9 compliance. The U.S. Supreme Court’s decision to overturn Chevron deference, which previously allowed courts to defer to federal agency interpretation of regulations, introduces more uncertainty for employers, as future legal rulings on immigration compliance could become less predictable.
I-9 Compliance and E-Verify
One of the biggest compliance risks for businesses is ensuring correct usage and recordkeeping of Form I-9. Employers are required by law to verify the identity and work authorization of all new hires, as well as reverify work authorization for existing employees under certain circumstances. In some instances, employers are required to use E-Verify to confirm employment eligibility. While E-Verify is currently mandatory only for certain federal contractors and businesses in specific states, the Trump Administration may push for nationwide implementation.
Failure to properly complete and retain Form I-9 and/or comply with applicable E-Verify requirements can result in significant fines and penalties. Past audits by Immigration and Customs Enforcement (ICE) have shown that even minor errors, such as missing signatures or incomplete sections, can lead to serious consequences. Employers must also be careful to use the current edition of Form I-9 and understand that the use of the Spanish language version is permissible in extremely limited circumstances. Given the administration’s expected focus on worksite enforcement, it is in employers’ best interest to evaluate their I-9 processes and audit existing I-9 files to identify and proactively address areas of concern to minimize potential risk. ICE inspections are typically issued with short response times, and proactive internal audits can ensure that employers are prepared to act quickly in response to these government inquiries.
To complete an internal audit, employers should proactively review their Form I-9 records, ensuring each form is complete and up to date, and that all employee documents are legitimate and correctly recorded. It is important to note that while HR professionals (or other employees responsible for the I-9 verification process) are not document experts, they have a responsibility to inquire further with an individual who presented a document that appears suspicious. Companies with large workforces or complex I-9 records may benefit from outside legal counsel to conduct these audits, preserving attorney-client privilege while identifying and correcting errors. By conducting an internal audit, employers can proactively correct errors, thereby reducing potential penalties in the event of an ICE inspection. Employers should document internal audits, training sessions, and any corrective actions taken to record their good faith compliance efforts with the government’s rules.
With the administration’s focus on enforcement, companies also should prepare an internal protocol for potential ICE inspections and audits. Designating a specific company representative to handle government inquiries will facilitate effective responses and ensure proper legal compliance. This person should be well-versed in Form I-9 procedures and work closely with legal teams to minimize disruptions to business operations.
Maintaining thorough compliance records is another crucial step. For example, having documented procedures for Form I-9 completion and record keeping can play a key role in strengthening employer compliance. Additionally, HR teams and hiring managers should undergo regular training to ensure they understand the proper procedures for Form I-9 completion and retention, recognize fraudulent or suspicious documents, and consult with legal experts when necessary. Resources such as the M-274 Handbook for Employers and the USCIS I-9 Central website provide guidance on maintaining a compliant verification process. Through the use of these resources and collaboration with legal counsel, employers can protect themselves by developing and implementing a robust verification process, which should include monitoring procedures, reminder systems, and leave/termination protocols if someone does not provide reverification documents on time.
Another area of potential focus by the new Administration is remote I-9 verification. While the Department of Homeland Security (DHS) has implemented alternative procedures for remote verification, these policies could be modified or rolled back. Employers should stay informed and be ready to adjust their verification practices, including staffing models, as needed. To further streamline I-9 compliance and minimize the risk of fines, employers should consider reviewing their participation in E-Verify, even if not currently required by law, to strengthen an argument that they are leveraging the government’s most powerful tools to ensure employment of only work-authorized individuals.
Companies undergoing a merger or another form of corporate restructuring where employees will be transferred from another company need to understand the nuances of assuming liability for Forms I-9. In this context, employers would benefit from consultation with an experienced worksite compliance attorney and a full or partial audit of the Forms I-9. This can help in deciding whether to assume the existing Forms I-9 (and any potential risk) from the former employer or to complete new Forms I-9.
Worksite Investigations
In some instances, problematic findings by ICE during an I-9 audit may lead to large-scale enforcement actions, also known as “raids.” These operations, led by ICE and Homeland Security Investigations (HSI), can result in arrests of alleged unauthorized workers and severe penalties for employers found hiring unauthorized workers. Most often, ICE and HSI target businesses in industries such as agriculture, manufacturing, meatpacking, and hospitality. Although these investigations can be triggered by I-9 audits, they can also result from whistleblower complaints or prior violations.
Worksite raids occur with little to no warning. ICE agents may enter businesses with administrative warrants, such as Blackie warrants, allowing them to inspect employment records and seize documents without prior judicial approval. Employers found knowingly hiring undocumented workers may face significant fines and criminal liability. In 2019 alone, ICE issued $13 million in fines for worksite enforcement violations.
Since ICE raids can be intimidating, employers should consider informing their employees of their rights during a raid, including their right to remain silent and request legal counsel. Having a designated internal team ready to respond to ICE actions can help mitigate disruptions and ensure proper handling of the situation. Companies should also develop contingency plans for staffing shortages that could arise from a worksite raid to minimize business disruptions.
Citizenship and Discrimination Investigations
While employers need to take measures to ensure I-9 employment verification compliance, they must also be thoughtful to avoid triggering a potential discrimination complaint. The Department of Justice’s Immigrant and Employee Rights (IER) division is tasked with and expected to continue investigating allegations of discrimination based on citizenship or national origin.
The IER scrutinizes practices related to Form I-9 verification and employer-sponsored visas to ensure compliance with anti-discrimination laws. Employers must avoid mandating specific documents from certain groups or requesting excessive documentation beyond legal requirements. The practice of overdocumentation in the completion of Form I-9 can subject an employer to fines.
IER investigations can result from complaints from employees, job applicants, or third parties who believe they have been unfairly treated in hiring, firing, or recruitment. Under the previous Trump administration IER pursued cases against employers accused of favoring foreign workers over U.S. citizens and permanent residents.
As part of their comprehensive worksite compliance review process, employers should evaluate their hiring policies to ensure they do not inadvertently exclude or disqualify individuals based on citizenship or national origin. Job postings should be carefully worded to avoid discriminatory language. Moreover, training HR teams in anti-discrimination laws and proper hiring practices is essential to demonstrate good-faith compliance efforts. To ensure transparency and preparedness for potential IER inquiries, companies should maintain internal records of any discrimination complaints or investigations.
As described above, there are various governmental agencies and actions involved in immigration and worksite enforcement. Employers and their workers need to prepare for an expected uptick in enforcement actions by educating themselves on the various agencies and mitigating their risks through self-audits, employee training, proper recordkeeping, and identifying key internal points of contact for response plans.
If you have any questions or concerns about the content of this post, please reach out to one of Klasko Immigration Law Partners’ worksite compliance attorneys.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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