Form I-9 Compliance Is Vital Given Trump’s Immigration Agenda

President-elect Donald Trump campaigned on mass deportations of immigrants living in the US without authorization. His playbook may be similar to his first term, but Trump is expected to pursue even stricter immigration policies this time.

US businesses should prepare for a potential surge in immigration-related audits, investigations, and worksite enforcement actions—particularly on Form I-9 compliance. Employers should take proactive steps to minimize their legal and financial risks before this heightened enforcement potentially becomes reality.

I-9 compliance enforcement reached an all-time high during Trump’s first term. Immigration and Customs Enforcement initiated more than 6,400 audits in fiscal year 2019 and may have reached its stated goal of 15,000 audits in fiscal 2020 if not for the pandemic.

By comparison, ICE averaged 3,000 to 3,500 I-9 audits per year under former President Barack Obama. Under President Joe Biden, this area of enforcement relaxed considerably, in part due to pandemic flexibility.

Understand I-9 Responsibilities

Form I-9, Employment Eligibility Verification, is at the heart of US immigration enforcement. US employees and employers are required to complete an I-9 that verifies identity and work authorization status. Although compliance with this short form may seem straightforward, even minor mistakes can have serious consequences.

ICE can penalize businesses for Form I-9 errors, with fines ranging from $281 per violation to as much as $27,894 for more serious repeat infractions. If worksite investigations intensify as anticipated, employers that fail to maintain proper I-9 documentation could face significant exposure.

An audit request can come from ICE, the Department of Homeland Security, or Homeland Security Investigations. Once subpoenaed, employers must produce Forms I-9 for all current and certain former employees for whom they still must maintain forms.

Employers also must turn over any relevant supporting documentation retained—such as copies of passports, birth certificates, and green cards used to prove employment eligibility—as well as payroll and owner information. Typically, this must be done within only three business days, unless the company is granted an extension.

Adopt Compliance Strategies

When it comes to I-9 compliance, the best defense is a good offense. Employers should review their I-9 records periodically to identify any discrepancies or gaps. This includes checking whether forms are complete, signed, and accompanied by the correct supporting documentation. Companies should correct any errors to show good-faith compliance, which can be a factor when penalties are assessed during an audit.

Employers must ensure human resources staff and hiring managers are familiar with Form I-9-related legal requirements. Regular training is necessary to keep on top of frequent changes and help prevent mistakes. Failing to complete sections on time or neglecting to verify documents properly are two common ones.

Finally, companies not already using E-Verify should consider doing so. This electronic system allows employers to confirm the employment eligibility of their employees, streamlining the I-9 compliance process and reducing the likelihood of accepting incorrect or incomplete information.

Prepare for Enforcement

Tracking immigration policy changes will be one of the most significant challenges for employers in the weeks and months ahead. It’s not uncommon for companies to have employees with various immigration statuses, and an internal compliance audit can help identify the support different groups will need.

Employers that have employees with work authorization that will expire and need reverification should note if they’re in a potentially vulnerable category. Trump has said he will end Deferred Action for Childhood Arrivals, Temporary Protected Status, and the humanitarian parole program, affecting some 2.7 million people.

Given the abrupt policy swings that happened from 2016 to 2020, it’s possible that foreign national beneficiaries of these programs who anticipated extensions could lose their future immigration status and employment authorization overnight.

Large-scale ICE raids of employers resumed during Trump’s first term, resulting in more than 1,800 arrests. Companies that employ foreign national workers should prepare for more unannounced site visits and the possibility of raids. This includes implementing a communication plan, ensuring that key personnel are available to respond quickly, and consulting with legal counsel.

Worksite enforcement is both disruptive and costly. Raids and other enforcement actions can have profound effects on foreign national workers—even those with legal status—as they may become fearful for others in their household or community.

Monitor H-1B Changes

Employers that request extensions for current H-1B holders are likely to face higher scrutiny, making outcomes and costs less predictable.

During Trump’s first term, US Citizenship and Immigration Services rescinded its “Deference Memo,” which for years had allowed officials to weigh prior approvals when considering extension requests. USCIS had to treat extension requests as new petitions, increasing risk of denial and lengthening processing times for routine L-1 and H-1B extensions.

Deference resumed under Biden, and after the election, there were fears Trump would direct USCIS to rescind this memo again. However, in late December, DHS codified deference in a final rule to modernize H-1B requirements. The incoming administration may restrict the H-1B program in other ways, such as increasing Requests for Evidence and denials. During Trump’s first presidency, H-1B denials reached 24% in 2018.

Further, Trump may end an Obama-era rule that gave work authorization to spouses of H-1B visa holders, the vast majority of whom hold at least a bachelor’s degree.

Remember Campaign Promises

Trump has repeatedly stated his intention to take a hardline approach to immigration. Form I-9 compliance and ending temporary programs are the low-hanging fruit to meet this goal.

Last week, the House signaled its willingness to advance Trump’s immigration agenda, passing a bill targeting undocumented immigrants, chiefly those with criminal convictions and who pose national security threats and including those charged with nonviolent crimes. This bill also would expand mandatory detention for people who are undocumented and empower states to challenge federal immigration policy.

Companies that are in targeted industries that rely on foreign national workers should start contingency planning now. To avoid workforce disruptions, businesses will want to stay on high alert for immigration changes and consider alternative employment authorization options for certain vulnerable employees most likely to lose legal status.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Renée Mueller Steinle is partner at Stinson, advising employers on recruiting and hiring, defending I-9 raids and audits, and establishing compliance programs.

Write for Us: Author Guidelines