The first month of the Trump administration has confirmed that employers can expect increased enforcement of immigration compliance. Immigration & Customs Enforcement (ICE), Department of Homeland Security (DHS), and Homeland Security Investigations (HSI) will conduct more I-9 audits and other worksite enforcement operations (i.e., “raids”). President Trump's border czar, Tom Homan, told 60 Minutes before the election that the Trump administration would target employers that rely on workers without legal status. During President Trump's first term as President, ICE increased I-9 audits. To prepare for the likely increase in worksite enforcement operations, employers should develop proactive plans to mitigate the risks of an audit or raid, which include civil money penalties, debarment of federal contractors, seizure of employer resources, and criminal charges.
The Immigration Reform and Control Act of 1986 prohibits hiring individuals who are not authorized to work in the United States. Employers must confirm the identity and employment eligibility of new employees by completing an Eligibility Verification Form, commonly known as Form I-9, for each new employee. The most common enforcement action is an I-9 audit. These audits may be random. In such an audit, an ICE, DHS, or HSI agent will serve the employer with a Notice of Inspection requiring the employer to produce all Form I-9s for a specified period, supporting documents for the Form I-9s, and other information about employees (e.g., list of employees and contractors). The agent will review the documents provided by the employer. The agent may provide the employer time to correct any minor errors, and uncorrected technical and substantive violations can result in a civil penalty of $281 to $2,789 for each individual violation.
“Raids” are rarer. These actions require a warrant for agents to seize information and individuals. Unlike an audit, an employer will have no advance notice of a raid. Many agents will appear at the worksite, secure the worksite, and enter the worksite with a warrant. Employers must immediately contact legal counsel. Employers and employees do not have to answer an agent’s questions, but agents may detain unauthorized workers and seize employer property.
To mitigate the risks of enforcement actions and penalties, employers should have an attorney conduct or supervise an internal audit of the employer’s I-9 compliance. Any errors discovered during such an audit should be corrected to avoid or mitigate potential penalties before the employer is audited or raided by immigration agencies. Additionally, employers should ensure responsible employees are properly trained on preparing and maintaining Form I-9s and how to respond to any worksite enforcement actions.
