Immigration reform played a key role during the presidential campaign cycle. Given the starkly different philosophies between the current and incoming administrations, changes to federal immigration policy are imminent. Although specific policy changes will develop over time, employers can take steps now to ensure they are in the best position when changes come. Changes in workplace enforcement are likely in these areas:
- Increased Focus on Form I-9 Inspections. During a Form I-9 inspection, an agent of the Department of Homeland Security, Immigration and Customs Enforcement (ICE) or Homeland Security Investigations inspects the Forms I-9 of a company’s employees (all current employees and certain terminated employees) as well as relevant supporting documentation. A company generally is provided three business days to produce any requested documentation.
Form I-9 inspections normally have been part of the government’s immigration enforcement strategy. During the first Trump administration, the volume of Form I-9 inspections increased to 6,450 in fiscal year 2019 — almost double the average number of annual audits during the Bush and Obama administrations. This strategy stands in stark contrast to the approach under the Biden administration, which did not prioritize inspections, allowing the number to dwindle to 264 in fiscal year 2024.
While less disruptive than a workplace raid, Form I-9 inspections can bring significant consequences and often are a precursor to more serious enforcement actions. Paperwork errors in the completion of Forms I-9 can bring fines ranging from $281 to $2,789 per error, which can add up quickly for larger employers. Inspections may also reveal larger issues. For example, an inspection may reveal that, despite providing documentation that appeared genuine and to reasonably relate to the employee, the employee was not authorized to work in the United States. At a minimum, this can cause business disruption when the employee is terminated. Employers also can face higher fines and potential criminal liability if they knowingly employ unauthorized workers. - Workplace Raids. Along with a focus on Form I-9 inspections, workplace raids likely will return as part of President Donald Trump’s efforts to carry out his campaign promise of mass deportations of undocumented immigrants. Raids come with no warning to ensure surprise and can disrupt an employer and its workplace. They typically occur after ICE receives information that an employer is violating immigration law. During a raid, ICE agents should present a warrant to seize information and detain individuals. If a company is raided, it is critical to contact immigration counsel immediately. Having experienced counsel present during the raid is invaluable to communicate with the agents on the company’s behalf, coordinate interviews of personnel and provide guidance as the raid progresses.
If the Trump administration takes the same approach it did during the first term, there may be a focus on staffing agencies for workplace enforcement actions. That focus will likely include the agencies and the employers that rely on the staffing agencies. Large employers may also be initial targets, as well as blue-collar industries like construction, manufacturing, agriculture, landscaping, meat processing, food service and hospitality.
Employers should be proactive and evaluate their compliance with immigration laws and adjust as needed. Steps employers can take include (but are not limited to):
- Train HR Professionals on Form I-9 and E-Verify Compliance. Employers should ensure that staff responsible for Form I-9 and E-Verify completion are fully trained on how to properly and timely complete Forms I-9 and how to inspect the identity and work authorization documents that may be presented by employees. Periodic training can help identify issues in the company’s Form I-9/E-Verify policies and processes and correct bad habits that may lead to paperwork errors.
- Perform a Self-Audit of the Company’s Form I-9 and E-Verify Policies and Records. Companies should periodically audit their immigration-related policies and documents — particularly its Forms I-9 and E-Verify records. A self-audit allows the company to ensure that Forms I-9 and E-Verify case confirmations (if the company uses E-Verify) are on file for all current employees, to identify and correct paperwork errors, and to identify necessary revisions to immigration-related policies or practices. It also allows the company to take corrective action if problems are identified — for example, if an employee’s temporary work authorization has expired or if a worker did not provide documents sufficient to establish identity or work authorization. Performing a self-audit and taking corrective action also may help mitigate fines in the event of a government audit. Companies should therefore perform a self-audit as soon as possible before the frequency of government Form I-9 inspections increases.
- Create an Action Plan. Given the expected increase in workplace audits and government enforcement actions, companies should take the time now to create (or revise) an action and communication plan to ensure frontline employees know how to respond if an immigration agent shows up at the workplace. The plan may include details on steps to take, including what to say, who at the company to notify, and whether and when to allow access to requested documents or personnel. If the company has not retained immigration compliance counsel, it should consider retaining counsel who can be added to the list of people to notify immediately in the event of a workplace enforcement action.
For assistance with immigration compliance training; assessing the adequacy of immigration policies and procedures; performing a self-audit or defense of a government audit, investigation or workplace raid; or other immigration-related questions, contact the authors or other members of the McGuireWoods labor and employment or immigration teams.