Government investigations of employers' I-9 compliance have been a key part of both Democratic and Republican administrations' efforts to combat unauthorized immigration. Form I-9, which became mandatory in the United States on November 6, 1986 when the Immigration Reform and Control Act (IRCA) was passed, is one of many crucial documentation processes required of employers in the United States. Form I-9 is intended for employers to verify the identity and employment authorization of individuals hired to work in the United States.
Completion of Form I-9 involves two main steps: the employee completes Section 1 by entering personal identifying information and attesting the information is accurate, and the employer fills out Section 2 to include validating whether the documentation reflects the individual being hired. Section three is for employers to complete when an employee’s name legally changed, the employee’s work authorization expires, or the employee is rehired within three years of the date on the Form I-9. Each section requires careful attention to detail to ensure that all information is accurate and complete. E-Verify employers must mitigate cases that result in non-confirmation.
Most Form I-9 penalties are incurred in an Immigration and Customs Enforcement (ICE) audit or ICE raid. If a notice of inspection is initiated by ICE, companies generally have three days to produce Forms I-9 of all current and terminated employees (period of terminated employees varies from 1 to 3 years) and relevant supporting documentation. An ICE raid does not typically provide a company with any warning or lead time for paperwork. Therefore, employers must be mindful in their I-9 record keeping. The United States Department of Homeland Security (DHS) recently announced in 2024 there will be increased fines against employers that fail to comply with the rules governing Form I-9. Failure to comply with I-9 regulations can result in substantial fines and penalties for employers.
DHS announced the following fine schedule:
These fines can be financially devastating, especially for smaller businesses with limited resources. Ensuring accurate and timely completion of these forms is not just a legal obligation but also a way to maintain a transparent and accountable hiring process.
I-9 compliance enforcement was priority during Trump’s first term. ICE initiated more than 6,400 audits in fiscal year 2019 while they averaged around 3,000 audits under the Obama administration. Worksite raids increased in frequency along with the number of arrests under the first Trump administration. Raids began shortly after Donald Trump took office in January 2017. The former Trump administration took a stringent approach to immigration and employment verification. The heightened scrutiny meant that even minor errors in I-9 documentation could lead to significant legal and financial consequences. Employers saw a rise in enforcement actions up until the pandemic due to the administrations focus of resources.
The new Trump administration is likely to have considerable impact on immigration law and enforcement. It is expected that worksite raids and ICE I-9 audits will increase under new ICE leadership, and employers should be diligent in their immigration compliance and ensure staff are fully trained on the Form I-9 process. I-9 audits are expected to rise substantially, potentially doubling compared to previous years. Agriculture, hospitality, construction, and manufacturing industries may face heightened scrutiny.
Temporary Protected Status (TPS) is an immigration status provided to migrants who are unable to return to their countries because of difficult or unsafe conditions. Trump has vowed to end TPS for immigrants from some countries. Days ago, Biden extended TPS for close to 1 million immigrants from Venezuela, El Salvador, Sudan and Ukraine. TPS designations can be revoked by the DHS secretary - the government must provide a 60-day notice. Trump is expected to let TPS protections from other countries expire this year as he prepares to launch the mass-deportation campaign. TPS holders reside all over the United States. The largest populations of TPS holders live in Florida, Texas, New York, California, and New Jersey. Employers will face challenges managing changes to TPS as Trump settles into office and they must dedicate resources to stay apprised of latest developments.
The Department of Labor Office of Federal Contract Compliance Programs (OFCCP) is responsible for ensuring employers doing business with the federal government comply with laws and regulations requiring nondiscrimination. While OFCCP is not the agency responsible for I-9 enforcement, it has played a role in auditing I-9 compliance. In 2008, OFCCP issued new Form I-9 inspection procedures for compliance officers to review them during on-site compliance reviews of federal contractors. OFCCP did not have enforcement authority with respect to I-9s and could not assess penalties or fines. Instead, they would refer I-9 compliance problems to ICE. OFCCP ceased reviews of I-9s in 2010 during the Obama Administration.
There is a Memorandum of Understanding between OFCCP and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) regarding intersecting enforcement interests in immigration-related employment discrimination. While OFCCP's role in I-9 enforcement was not as extensive as that of ICE, it is plausible that the Trump administration will resume the practice of OFCCP including I-9 verification as part of its compliance reviews for federal contractors.
To navigate the complexities of I-9 regulations, especially in the context of the next Trump era, HR managers should adopt the following best practices:
Keep your HR team informed about the latest changes in I-9 regulations and ensure they understand how these changes impact your organization's practices. Regular training sessions can help your team stay ahead of compliance requirements. Training should also include scenarios and practical exercises to enhance understanding and retention.
Consider using electronic I-9 services and documentation tools. They can simplify the process, ensure accuracy, and make it easier to maintain records. This is particularly useful for organizations that hire a significant number of employees. Electronic tools can use logic to avoid common mistakes and errors.
Conduct regular internal audits of your I-9 forms to identify and rectify any discrepancies before an official inspection occurs. This proactive approach can save your organization from potential penalties. Internal audits also provide an opportunity to review and refine compliance strategies, ensuring continuous improvement without government officials and fears of fines involved. Make sure you comply with record retention requirements.
Understanding and adhering to I-9 regulations during the new administration might seem daunting, but with the right strategies and tools, it becomes manageable. By maintaining a keen eye on compliance and fostering a transparent hiring process, you not only protect your organization from legal repercussions, you improve your organization's overall efficiency and employee satisfaction.
As you strive to establish a more organized compliance process, integrate requirements that are closely related. Whether you use an outside vendor or technology, consider consolidating the management of I-9s, OFCCP compliance, EEO-1 Reporting, VETS-4212, pay reporting and other potential regulations to further safeguard your efforts.
Remember, staying informed and prepared is your best defense. By keeping up with regulatory changes and implementing best practices, you can ensure that your organization remains compliant and thrives. This commitment not only fulfills legal obligations but also strengthens the organization's brand and competitive advantage in the marketplace.