How Employers Can Prepare for Increased I-9 Enforcement During the Second Trump Administration

It is widely expected that immigration enforcement will dramatically increase with the incoming Trump administration. 

Employers should expect that this will also include a substantial increase in worksite and I-9 enforcement, as many experienced a significant increase in I-9 enforcement efforts during President-elect Trump’s first term. 

U.S. Immigration and Customs Enforcement (ICE) is the component of the Department of Homeland Security that is responsible for I-9 enforcement. During the first Trump administration, Thomas Homan served as the Acting Director of ICE, publicly announcing in 2017 that the agency’s worksite enforcement efforts, including I-9 audits, worksite investigations, and even large-scale workplace actions, would be increased by four to five times the current levels at that time. 

ICE followed up on those statements. For example, for all of FY 2017 ICE initiated 1,360 I-9 audits nationwide. Although it became difficult to obtain worksite statistics in later years of the first Trump administration, it is known that in just the first seven calendar months of 2018, ICE initiated 5,278 audits, a dramatic increase from the total for the entire previous fiscal year period.

What employers can do now ahead of the second Trump administration

President-elect Trump has announced that he would make former Acting ICE Director Homan the “Border Czar” responsible for border security and other areas of immigration enforcement. He has already publicly indicated that increased worksite investigations and enforcement will be a substantial part of the incoming administration’s overall immigration enforcement and deportation efforts.

Employers should act now to ensure that their I-9 programs are compliant before the increase in government enforcement begins.

Conduct Regular I-9 Audits: Employers should work with outside counsel to conduct regular audits of I-9 forms and take steps to remediate any errors discovered. This will help identify any weaknesses in an employer’s I-9 compliance procedures and ensure that I-9 records are accurate and compliant. Employers may have record keeping gaps that have arose during the COVID-19 pandemic, when many employers and employees were working remotely. Now is the time to review those records and ensure that any compliance issues are addressed.

The range for fines for I-9 paperwork errors, essentially errors or omissions on the I-9 form itself, is now $281 to $2,789 per each form with at least one error. Even for employers with no concerns regarding employment of unauthorized workers, those fines can quickly add up if the employer’s I-9 records are not in good condition.

Employers enrolled in the E-Verify program should also review their E-Verify records to ensure that all cases have been closed and all non-confirmation results have been resolved.

Review I-9 Policies and Procedures: Now is also the time for employers to review their employment verification policies and processes. Just some of the questions to consider include the following:

• • • Are there strong procedures in place to ensure that I-9 forms and E-Verify queries are completed on a timely and accurate basis?
    • If the employer is utilizing the new remote I-9 completion procedures, are I-9s being completed in a compliant manner?
    • If the employer is reliant on utilizing the remote procedure, is their planning in place to implement alternate procedures if the new administration eliminates the remote completion option?
    • Is I-9 and employment verification included in the employer’s corporate compliance policies?
    • Are there policies in place to require internal reporting and resolution of any compliance issues or concerns, particularly any concerns about employee documentation or unauthorized employment?

Provide I-9 Compliance Training: Ensure that all employees involved in the I-9 completion and employment verification processes receive adequate training on I-9 and E-Verify rules. This should include training on proper completion of I-9 forms and E-Verify cases as well I-9 and E-Verify requirements, including the prohibitions against immigration-related discrimination.

Assess I-9 Investigations Risks: Employers in certain industries will face greater risks than others in the event of an I-9 audit or investigation. For example, industries or employers with large “unskilled” workforces, such as construction, agriculture, retail, restaurants and food services or processing, or temporary staffing, face additional significant risks in the event of an ICE audit or investigation beyond penalties for I-9 paperwork violations.

This could include the potential impact of employee turnover or the loss of important personnel if the government determines those workers are not authorized to work in the United States. Employee turnover could potentially have much more severe impact on an employer’s business or operations than any fines for I-9 errors. Employers may also face questions or investigations regarding whether the company had knowledge that some or all of these workers were unauthorized when that occurs.

Employers may want to work with outside counsel to determine whether there are additional compliance reviews that can be conducted to minimize risks such as identity and document fraud in the workforce.

Businesses relying on temporary workers provided by third parties will need to ensure that those vendors or contractors also have strong compliance procedures in place because ICE audits or investigations of those companies could similarly have an adverse impact on business operations.

Federal Contractors should ensure that they have strong I-9 compliance procedures in place. It can be expected that ICE would aggressively pursue debarment of any federal contractor who is determined to have knowingly employed any unauthorized workers.

Evaluate Compliance of Electronic I-9 Systems: Employers should assess the compliance of any electronic I-9 system with regulatory requirements. The DHS regulations contain specific requirements that must be met for I-9s completed and retained on those systems to be considered compliant. Increased focus by ICE during I-9 audits has been observed on the underlying compliance of the electronic I-9 systems being used. In several cases, ICE has imposed or is seeking to impose substantial penalties on employers because of alleged system flaws of commercial I-9 solutions even where the actual I-9 forms did not contain any errors. ICE review of an I-9 system frequently involves examination of the electronic signature process and whether the system sufficiently captures the actions taken to complete or amend each I-9 record in its audit trails. Electronic I-9 system compliance is fundamentally important because if ICE were to determine that a system failed to meet the regulatory requirements it could potentially deem every I-9 completed on that system to be invalid.

Employers should work with outside counsel to assess the compliance of their current I-9 system. Just as importantly, any employer who has switched I-9 systems in recent years should work with outside counsel to ensure that the existing I-9 records from the previous electronic I-9 system have been retained and transferred in a compliant manner.

Don’t Forget About State and Local Requirements: Employers should factor in state and local requirements in their assessments of their I-9 policies and procedures. A number of states have enacted mandatory E-Verify requirements for some or all employers in that state. A few states have imposed certain employee notification obligations on employers in the event of federal enforcement actions. Employers should consult with outside counsel to ensure that any such state and local laws are incorporated into overall compliance program.

Looking ahead

I-9 and worksite enforcement will be an important component of the incoming administration’s plans to ramp up immigration enforcement in general. 

Employers should proactively review and assess their immigration and I-9 compliance programs now to minimize any potential risks should they be the subject of an I-9 audit or investigation in the future. 

Fragomen’s Compliance Team has unrivaled expertise both in counseling employers on employment verification compliance as well representation and enforcement defense of government audits and investigations and is available to assist in that assessment.

Need to know more?

For further information and assistance with questions regarding I-9 and E-Verify compliance questions, please contact Partner Daniel Brown at [email protected].

This blog was published on November 18, 2024, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.