Companies Prep for Immigration Audits Ahead of Trump’s Return

In-house counsel at companies across every sector of the economy are bracing for President-elect Donald Trump’s looming crackdown on immigration, working to shore up the documents that prove their employees can legally work in the US.

“There’s just one overarching principle: Get your paperwork in order. And it starts with I-9s,” said Diane Butler, chair of the immigration group at Davis Wright Tremaine in Seattle.

I-9s are the forms every employee must have on file to prove they have the right to work in the US—wherever they were born. In the first Trump administration, US Immigration and Customs Enforcement dramatically ramped up I-9 audits: From fiscal year 2017 to 2018, the number of such audits soared to nearly 6,000 from 1,360. The agency was aiming for as many as 15,000 audits by 2020, a top official told the Associated Press, but the pandemic prevented it from realizing those plans.

This time around, employers expect to see even more.

For the most part, Butler said, her clients aren’t panicking. “It’s more of an eye-rolling, hassle, sort of sentiment,” she said.

But it’s a paperwork hassle with potentially steep consequences: Companies can rack up fines in the hundreds of thousands of dollars, with penalties as high as $2,789 per violation for errors on the forms, and up to more than $27,000 for knowingly employing an unauthorized worker—not to mention reputational damage. If ICE goes a step further and conducts widespread workplace raids and detains or deports workers, or if new federal policies revoke the status of foreign-born workers who are currently able to work in the US legally, affected companies will face major disruptions to their operations.

In the construction industry, for example, companies may find it nearly impossible to price projects with so much workforce uncertainty.

“If you don’t know how many people you will have working for you next year because there’s a sword of Damocles hanging over 20 of your workers, then you have to think long and hard to be really careful about whether you’re going to bid that work,” said Brian Turmail, vice president of public affairs and strategic initiatives at the Association of General Contractors.

“It’s not just like, ‘how many hard hats do I buy?’” he added. “It’s literally, ‘Do I bid on this work or not? Do I chase revenue or not?’”

ICE didn’t respond to a request for comment.

Details Matter

Serious I-9 violations include knowingly employing someone who isn’t authorized to work in the US—though it’s often difficult for ICE to prove an employer knew about a fraudulent green card, said Bruce Buchanan, special counsel at Littler Mendelson in Nashville.

It’s also easy for an employer to slip up on an I-9, even for an employee authorized to work in the US. For example, ICE considers an employee failing to check a box saying whether they’re a US citizen a “substantive error,” Butler said. Other faults include failing to complete the I-9 form within three days of the employee starting a job, and using out-of-compliance electronic signatures, she said.

ICE was already picky about those details, so any audit would likely surface those kinds of errors. If there’s a surge in audits, the chances are that ICE will find such mistakes at many more companies.

“It is a numbers game,” Buchanan said. “How do you become more aggressive than ICE I-9 audits? Well, obviously, you have more of them.”

Companies are also eyeing potential Trump policy changes that could affect whether foreign-born workers who currently have the right to work in the US will be able to continue.

Employers should be thinking about how they might protect the hundreds of thousands workers currently covered by Deferred Action for Childhood Arrivals, or DACA, if that policy is revoked, Butler said. They could try to get those employees an H1-B visa, she said—though those are assigned through a lottery, which doesn’t come around again until March.

The construction industry, among others, is worried that the Trump administration will revoke Temporary Protected Status for workers from the 17 countries that are currently eligible, Turmail said.

Acting now

Attorneys said ICE appears to be “clearing the decks” between now and Inauguration Day—resolving old cases to open space for a huge influx of new cases next year.

ICE attorneys seem more amenable to agreements right now, Buchanan said, so companies looking to settle a case should try to settle before Jan. 20.

But the most important action companies should take to prepare themselves for the new administration is to conduct an internal audit of their I-9s, attorneys said—and ensure the forms are correctly completed for every employee.

“There’s no greater way of protecting yourself” than an internal audit, Buchanan said. Many companies have already started: Buchanan said he currently had four clients doing internal I-9 audits, a high number for his practice.

He also recommended that companies purge the I-9s of terminated employees once they’re no longer legally required to keep them.

One caveat: Firing employees based on immigration status or national origin isn’t a good response to the coming changes, because anti-discrimination laws still apply, said Meredith Doll, of counsel at Baker Donelson in Houston.

“That’s a risk a lot of employers aren’t really cognizant of,” she said. “They may lean into, ‘Well, US citizens only,’ which is a textbook example of citizenship status discrimination, because you could be excluding permanent residents who are allowed to live and work here.”