Employers: Prepare for More I-9 Audits Under Trump Administration

The Trump administration has already begun to implement significant changes in U.S. immigration policy and work authorization enforcement is expected to be a top priority.

Employers should review their Form I-9 compliance now and prepare for potential I-9 audits and worksite visits, experts said.

“Federal law requires employers to use Form I-9 to document employment eligibility,” said Sarah Hawk, a partner in the Atlanta office and chair of the Immigration and Global Mobility group at Barnes and Thornburg. “Although some employers use the paper version of Form I-9, others also participate in E-Verify, a voluntary web-based system that compares information from an existing Form I-9 to government records to confirm an employee’s authorization to work in the U.S.”

A surge in I-9 audits is expected under the new administration.

“We expect heightened scrutiny on I-9s as the Trump administration enters office,” Hawk said. “We’ve had increased interest from clients seeking legal help on I-9 compliance, and we are conducting some very large internal audits right now.”

While completing and retaining Forms I-9 may appear straightforward, even employers with strong compliance programs may inadvertently make mistakes, said Miriam Thompson, of counsel in the Atlanta office of GreenbergTraurig. “Common issues include incomplete forms, late completion, misplaced documentation, or failure to adhere to retention rules—all of which could create vulnerabilities during an audit,” she said. 

Every employee on payroll must have an I-9 form on file that proves they have the right to work in the U.S. During the first Trump administration, U.S. Immigration and Customs Enforcement (ICE) dramatically ramped up I-9 audits from about 1,360 in fiscal year 2017 to nearly 6,000 in fiscal year 2018 and 6,450 in fiscal year 2019. ICE was planning on conducting 15,000 audits in 2020 before the COVID-19 pandemic interrupted those plans.

I-9 audits are the most common type of immigration worksite enforcement, and they involve ICE inspecting the I-9 forms for each employee to verify their employment authorization.

“Employers in certain industries may be more likely targets of such investigations, including agriculture, construction, and manufacturing,” said Nina Pelc-Faszcza, an attorney in the Hartford, Conn., office of Shipman & Goodwin. “Employers who do not participate in the E-Verify program may also be more likely to experience enforcement activity.”

To help mitigate the risks of fines and penalties, employers should self-audit their I-9 records with help from immigration counsel to discard any that no longer need to be maintained and correct any errors, Pelc-Faszcza said.

“If an employer identifies any unauthorized U.S. employment during this process, immediate corrective action should be taken,” she said. “Employers who knowingly employ undocumented workers can face significant fines and other penalties, including revocation of business licenses and even imprisonment for those employers that are found to have engaged in a pattern or practice of knowingly employing unauthorized workers.”

Companies can accumulate hefty fines, with penalties as high as $2,789 per violation for errors on the forms and up to more than $27,000 for knowingly employing an unauthorized worker. Even worse, HR managers and business owners could face up to 10 years in prison and fines up to $250,000 for actions considered “harboring” undocumented workers.

Hawk said that you must first ensure your organization is using the correct version of the form.

“At present, employers must use the Aug. 1, 2023, edition of Form I-9, which features an expiration date of either July 31, 2026, or May 31, 2027,” she said.

She explained that an I-9 audit is set into motion when ICE serves an employer with a Notice of Inspection, requesting the employer produce Forms I-9 for all current and terminated employees falling within the retention window as well as relevant supporting documentation if any has been retained. ICE will also request a list of employees’ names, most recent payroll, and names of contractors and staffing companies used by the employer.

Employers typically have three business days to turn over the original forms after copies have been made, Hawk said.

“Typically, once the employer contacts us, we intervene and establish a relationship with ICE and request additional time to prepare, if needed. We may get an extra week or two if there is a large number of I-9s or they are stored somewhere remotely, for example. During that period, we help the client review their I-9s and update any curable defects, which is allowed.”

Paperwork Violations

ICE will be looking for both technical paperwork violations and more serious instances of document fraud or the known hiring of unauthorized workers.

Technical paperwork violations include missing or incomplete information such as dates or document numbers, Hawk said. Substantive paperwork violations, on the other hand, include failing to complete the I-9 within three business days of the employee’s start date; failing to sign the form; failing to ensure the worker attests his or her citizenship or immigration status; failing to review and verify the proper documents; and failing to reverify workers with expiring work authorization.

“We’re getting an increase in questions about which documents are acceptable, which is a good thing,” Hawk said. “For example, a visa stamp is not good enough for work authorization: You need the I-94 card admission number. And a Costco card is not acceptable for identification.”

Simple technical omissions can be corrected, but not by using Wite-Out or backdating information, she said. Corrections should be initialed and dated.

“Employers can only make corrections to Section 2 and 3, while the employee can make corrections to Section 1,” Hawk said. “If technical errors are not corrected, they could turn into substantial violations over time.”

ICE typically takes a few months to review the forms and can take up to a year. Upon completing its inspection, the agency will issue a compliance letter if no issues were found; if violations were found, it will instead issue a variety of notices based on technical failures, discrepancies, or suspect documents.   

“Employers can receive a notice with intent to fine, in which case we would assist the employer and try to negotiate a lower fine by offering remediation and training to show good faith efforts,” Hawk said. “There could also be a need to litigate, which would go to an administrative law judge.”

Best Way to Prepare: Audit Yourself

Attorneys said that the most important action companies can take to prepare themselves for increased I-9 scrutiny is to conduct an internal audit of their I-9s.

“Regular self-audits of I-9 records may help employers identify errors and weaknesses in compliance procedures and allow them to address issues, correct mistakes, and strengthen their processes ahead of government audits,” Thompson said. “I-9 records should correspond to current employees and include hire dates, and to terminated employees whose I-9s are still within the required retention window—three years after hire or one year after termination, whichever is later.”

The audit may identify gaps in I-9 records, including those that arose during the pandemic, when many employers experienced recordkeeping challenges due to remote work.

“Any missing I-9s for employees on payroll should be completed with the employee as soon as possible,” Thompson said.

“If it’s discovered that an I-9 is missing, the employer can complete one and attach it to a memo explaining that the missing form was discovered during an internal audit,” Hawk said.

“Any serious violations that are found during the audit are communicated to the employer immediately for action,” she said.   

Audits not only provide an opportunity to correct practices and errors, but they also prompt internal training opportunities and enable employers to demonstrate good faith efforts that could reduce fines in the event of an inspection by ICE, Hawk said.  

Thompson added that employers that use electronic I-9 systems and E-Verify should also prepare for compliance checks, which include audit trails and electronic signature standards.

“Companies using temporary or contract workers should consider verifying that third-party vendors have robust immigration compliance procedures,” she said. “ICE audits or investigations targeting contractors may have an adverse impact on the company’s operations.”

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