Client Alert!
The Trump administration has already begun implementing significant changes in U.S. immigration policy, with work authorization enforcement expected to be a top priority. Employers should proactively review their Form I-9 compliance to prepare for potential I-9 audits and worksite visits.
Increased Scrutiny on I-9 Compliance: Federal law mandates that employers use Form I-9 to verify employment eligibility. While some employers complete the paper version of Form I-9, others utilize E-Verify, a voluntary web-based system that compares Form I-9 information against government records to confirm work authorization. With heightened enforcement efforts underway, employers must ensure they are using the correct version of the form—the Aug. 1, 2023, edition, which remains valid through July 31, 2026, or May 31, 2027.
Historical Trends in I-9 Audits: During the first Trump administration, U.S. Immigration and Customs Enforcement (ICE) significantly increased I-9 audits, rising from approximately 1,360 in fiscal year 2017 to nearly 6,450 in fiscal year 2019. ICE planned to conduct 15,000 audits in 2020 before the COVID-19 pandemic disrupted operations. Industries such as agriculture, construction, and manufacturing, as well as employers not enrolled in E-Verify, may be more susceptible to enforcement actions.
The I-9 Audit Process: An I-9 audit begins when ICE serves a Notice of Inspection, requiring the employer to provide Forms I-9 for all current and terminated employees within the retention window. Employers generally have three business days to comply. ICE also requests payroll records, employee lists, and information on contractors and staffing agencies.
ICE will scrutinize both technical paperwork errors and more severe violations, such as document fraud or knowingly employing unauthorized workers. Paperwork violations can result in fines up to $2,789 per violation, while knowingly employing unauthorized workers can lead to penalties exceeding $27,000 per instance. Business owners and HR managers risk criminal penalties, including imprisonment of up to 10 years and fis of up to $250,000 for violations categorized as “harboring” undocumented workers.
Mitigating Risk Through Internal Audits: To reduce exposure to fines and penalties, employers should conduct internal I-9 audits with legal counsel. Common issues include incomplete forms, late completion, missing signatures, and incorrect retention practices. Employers should verify that all current employees have properly completed I-9s and that terminated employees’ records are retained per legal requirements—three years after hire or one year after termination, whichever is later.
If an internal audit uncovers unauthorized employment, immediate corrective action is necessary. Employers that knowingly employ unauthorized workers face severe consequences, including potential business license revocation and criminal liability.
Employers should take these proactive measures to ensure compliance and mitigate potential liabilities under the Trump administration’s heightened enforcement policies. If you have any questions regarding I-9 compliance or need assistance with an internal audit, contact our office for legal guidance.
