| Go-To Guide: |
|
Under the incoming Trump administration, employers should prepare for heightened immigration enforcement and a potential increase in Form I-9[1] audits conducted by U.S. Immigration and Customs Enforcement (ICE), the Department of Homeland Security agency responsible for I-9 enforcement. During the first Trump administration, ICE audits increased significantly compared to prior years, although enforcement efforts then declined during the COVID-19 pandemic. With the anticipated return of more aggressive immigration policies, employers should consider proactively enhancing their I-9 compliance procedures to prepare for potential ICE audits.
Why I-9 Compliance Matters
While completing and retaining Forms I-9 may appear straightforward, even employers with strong compliance programs may inadvertently make mistakes. Common issues include incomplete forms, late completion, misplaced documentation, or failure to adhere to retention rules—all of which could create vulnerabilities during an audit.
Fines for I-9 paperwork errors now range from $281 to $2,789 per form with at least one error. Even employers confident they do not employ unauthorized workers may face substantial penalties if their I-9 records are out of compliance. Additionally, employers must respond quickly to ICE I-9 inspection notices, often within 72 hours, leaving little room for last-minute corrections.
Considerations When Preparing for ICE I-9 Audits
Conduct Internal I-9 Audits: Regular self-audits of I-9 records may help employers identify errors and weaknesses in compliance procedures and allow them to address issues, correct mistakes, and strengthen their processes ahead of government audits. The internal audit should confirm that Forms I-9 are properly labeled and indexed in an accessible location. I-9 records should correspond to current employees and include hire dates, and to terminated employees whose I-9s are still within the required retention window (three years after hire or one year after termination, whichever is later). Employers can purge old I-9s outside of the retention window. The audit may identify gaps in I-9 records, including those that arose during the pandemic, when many employers experienced recordkeeping challenges due to remote work. Any missing I-9s for employees on payroll should be completed with the employee as soon as possible.
Employers should review all retained I-9 forms for completeness and accuracy, correcting errors using proper amendment procedures and documenting changes. Consider using a checklist or similar tracking tool that follows the sequence of fields on an I-9 for consistent review and document the results of internal audits thoroughly.
Ensure Proper I-9 Training: To minimize compliance risks, consider training employees involved in I-9 completion and employment verification processes. Training may include proper completion of Form I-9, including in-person or remote document review; retention and storage requirements for I-9s; state and local e-Verify mandates and related processes; and avoiding discriminatory practices in employment verification.
Review and Update Company I-9 Policies: Employers should regularly review and update internal I-9 and employment verification policies. This includes establishing clear protocols for retaining, storing, and updating I-9s during employment authorization verification and reverification; enhancing compliance with state-specific e-Verify requirements; and developing response plans for government audits, investigations, or enforcement visits. If utilizing the alternative remote I-9 completion procedure, confirm that all forms completed remotely meet compliance requirements.
Prepare for E-Verify Audits: Employers participating in e-Verify should anticipate increased compliance checks, especially in states where e-Verify is mandatory. E-Verify use, while valuable, does not eliminate risks such as identity theft or unauthorized workers using stolen credentials. Employers should ensure they are familiar with applicable state laws and prepare for the possibility of expanded federal e-Verify requirements.
Assess Contractor Compliance: Companies using temporary or contract workers should consider verifying that third-party vendors have robust immigration compliance procedures. ICE audits or investigations targeting contractors may have an adverse impact on the company’s operations.
Electronic I-9 System Compliance: Employers may benefit from using an electronic I-9 system to streamline processes and I-9 retention and improve accuracy. However, any electronic system must comply with regulatory requirements, including audit trails and electronic signature standards. ICE has penalized employers for noncompliant electronic systems and deemed electronic I-9s completed improperly, even when individual I-9 forms were error-free. Employers should therefore evaluate carefully that the system meets applicable I-9 regulations.
Understand Potential Audit Triggers: Some industries face higher risks of I-9 audits due to the nature of their workforce. Employers in industries such as construction, agriculture, retail, restaurants, food services, and other industries engaged in temporary staffing may be more likely candidates for an audit. In addition to penalties for paperwork violations, these employers may face significant operational disruptions if ICE determines that unauthorized workers are on their payroll. Employee turnover or the loss of key personnel may have a more severe impact on business continuity than the financial penalties associated with I-9 errors. Moreover, employers may face heightened scrutiny if there is evidence they knowingly employed unauthorized workers.
With a renewed focus on immigration enforcement expected under the new administration, employers should proactively prepare and strengthen their compliance practices. Conducting internal audits, training employees, and updating policies may help companies ready themselves for potential audits and create a culture of compliance that protects the workforce and business.
[1] Form I-9 is used to verify the identity and employment authorization of individuals hired for employment in the United States.