Under the Trump administration, employers can expect a significant increase in the enforcement of immigration compliance, particularly Form I-9 audits. Even if you meticulously confirm the work authorization of your employees, Immigration and Customs Enforcement (ICE) can show up at your door as part of an ICE raid or to inspect your Form I-9 records in connection with a lead or complaint, or other factors. In this Part Two of a two-part client alert series (read Part One about preparing for ICE worksite raids here), our Immigration team will help prepare you so that you are ready in this era of increased enforcement.

Tips for employers to prepare for an I-9 audit:

  • Know the Law. For every employee hired after November 6, 1986, you must complete a Form I-9 that establishes they have the right to work in the United States.
  • Conduct an Internal Audit. Check your Form I-9 records to ensure that each I-9 is properly completed, signed, and dated; does not contain discrepancies; and is not missing information. Consider consulting experienced immigration counsel to conduct an internal I-9 audit, especially if you are in a high-risk or highly regulated industry. Having an attorney conduct an external audit can preserve attorney-client privilege for audit results and corrective measures.
  • Consider E-Verify. E-Verify is a voluntary (with limited exceptions) federal program that allows employers to confirm an employee’s eligibility to work in the U.S. (www.e-verify.gov). It is mandatory for certain federal contractors and employers in certain states, and its use may be expanded nationwide under the Trump administration. Employers should assess the risks and benefits of enrolling in E-Verify, even if not currently required to do so. E-Verify may help streamline compliance and mitigate risks of penalties.
  • Review Your I-9 Policy and Process.
    • Check that you are using the correct version of Form I-9—currently, the August 1, 2023, edition.
    • Conduct I-9 training for all representatives assisting with the process, focusing on how to accurately complete and retain I-9 forms, take corrective action when necessary and lawful, and avoid discrimination based on citizenship or national origin.
    • Establish consistent, non-discriminatory document review practices to ensure that no employee is asked to produce specific documents based on their perceived nationality or citizenship status.
  • Understand Common I-9 Issues. Common errors include missing signatures, incomplete information, late completion or expired Section 2 documents, and can result in significant penalties if detected by ICE during an audit. Employers who fail to comply with the regulations risk fines, other civil penalties, and possible criminal liability. ICE looks for both technical paperwork violations and more serious instances of document fraud or the known hiring of unauthorized workers.
  • Have a Plan. Prepare for potential audits by reviewing and updating internal processes for responding to ICE. Designate a specific company representative to manage any investigations or inquiries to ensure a streamlined response and appropriate advocacy to ICE. Be prepared to provide documentation quickly and efficiently to minimize disruptions to the business. Employers typically only have three business days to turn over the Forms I-9.
  • Third-Party Vendors. If you use temporary or contract workers, consider confirming that your third-party vendors have robust immigration compliance procedures. ICE audits targeting vendors can result in work continuity issues and potential liability for I-9 penalties.
  • Call Your Lawyer. In the event of an I-9 audit, the receptionist can tell ICE that the employer’s policy is to call the employer’s lawyer, who may be able to come to the worksite or speak to the ICE officers over the phone. Prior to being subject to an audit, we encourage you to reach out to our Immigration team to assist in reviewing your I-9 compliance as a whole to work on process improvements and a potential audit to correct any curable defects. 

For more information about preparing or responding to an I-9 audit or other immigration enforcement action or investigation at your workplace, please contact:

Lauren M. Hopwood
Partner
203.784.3104
lhopwood@carmodylaw.com

Johanna M. Bachmair
Associate
203.784.3183
jbachmair@carmodylaw.com

This information is for educational purposes only, to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.