Form I-9 Compliance: Adapting and Thriving in an Era of Enhanced Enforcement

By John Mazzeo, Senior Director and Associate General Counsel, i9Success

On January 20, 2025 at noon, Donald Trump will take the oath of office and once again assume the title of President of the United States. Shortly thereafter, human resources professionals will have to confront a new reality, especially if their workforce includes foreign nationals. This change in administration presents both challenges (compliance with arcane statutes and regulations) and opportunities (to proactively mitigate risk, shine in an audit, and be a partner to both employees and the business). 

This article proceeds first by identifying the anticipated changes a second Trump administration (Trump II) is likely to enact, either through regulation (or deregulation) or through enforcement. It will conclude with tips and strategies that HR professionals can implement today to mitigate the cost (both financial and with resource drain) of Trump II policies. 

Anticipated Changes

Each new administration brings with it different plans and priorities that organizations must anticipate. is no secret that Trump II will heavily focus on immigration enforcement, resulting in disruptions for employees and employers both. With that in mind, the following changes are expected:

• Return to Aggressive Worksite Enforcement: The most visible part of a Trump II immigration policy will be worksite enforcement actions akin to this one in Mississippi which resulted in 680 employees being detained. The administration will implement a multi-pronged strategy to ensure worksite compliance by:
  
  
  1. exponentially increasing the number of Form I-9 audits conducted annually;
  2. conducting more targeted enforcement actions that result in detention, arrest, and workplace disruption; 
  3. scrutinizing employers who “prefer” noncitizen labor over that of a United States Citizen; and 
  4. intrusive site audits and visits by the Fraud Detection and National Security Directorate (FDNS), including at remote employee’s homes. 

• Difficulty Obtaining Work Authorization Documents: United States Citizenship and Immigration Services (the arm of the federal government that grants work authorization to noncitizens present in the United States) is currently able to quickly adjudicate applications for work authorization but sees massive backlogs and delays with actual document production. This has necessitated reliance on an intricate web of document validity extensions which may be rolled back. Trump II will exacerbate these issues through other policies, such as surging USCIS resources to the southern border and applying additional scrutiny to applications for such documents – resulting in an increased number of noncitizens encountering employment authorization gaps. 

• Termination of TPS, DACA, and Parole Programs: Millions of noncitizens obtain their work authorization through a provision of law related to either Temporary Protected Status, DACA, or certain parole programs. Termination of these programs would leave large percentages of those individuals without work authorization. 

• Restrictions on the Sources of Noncitizen Labor: It is widely expected that Trump II will make it more difficult for employers to source international talent by:
  
  
  1. reinstituting “Buy American Hire American” policies, which includes additional scrutiny on visa applications; 
  2. restricting student employment through a reduction in STEM OPT eligibility; and increasing adjudication times by no longer deferring to previously approved petitions. 
     

Taking Control: Identify, Mitigate, and Remediate Now

While we largely know what we can expect from Trump II in these regards, there are still quite a few unknowns, including to what extent the proposed changes and rhetoric will actually be implemented and, if so, how long it will take to implement them. To that end, employers can get ahead of the game by taking the below actions now. 

• Understand your organization’s risk profile: It is widely expected that organizations operating in industries where high rates of unauthorized employment are common, those with prior violations, those related to critical infrastructure, those operating in the gig economy, or those who file large numbers of petitions for nationals of adversarial countries (China, Iran, Russia) will be priorities for enforcement actions. By understanding the company’s risk profile, you can adequately prioritize next steps and budget accordingly. 

• Conduct internal audits: Organizations should audit their records to ensure that Forms I-9 are completed correctly and timely as well as reviewing the submitted documents to determine if they appear to be genuine and reasonably relate to the individual who presented them. Companies would also be wise to audit their entire onboarding process – from job posting to Form I-9 completion and E-Verify processing – to determine compliance with anti-discrimination provisions of the Immigration and Nationality Act. Care must be taken during all internal audits to ensure that they are conducted without consideration of citizenship or immigration status or national origin.  These internal audits should also consider state law obligations related to employment verification, including state-based E-Verify mandates such as Florida’s Section 448.095. 

• Review and Update Applicable Policies: Critically examine your audit results to identify areas of risk and work with both business and legal stakeholders to devise and implement solutions.  At a minimum, policies should address: 
• Form I-9 completion (and E-Verify case creation, if applicable); 
• handling gaps in employment authorization; and 
• any possible discrimination in the hiring process or preference for noncitizens over United States citizens. 
  

A policy is only as good as its implementation, so each policy update should be accompanied by training. Ensure that all employees involved in the process receive adequate training on both USCIS’s rules and how to apply company policies. Trainings on anti-discrimination should be conducted as well.

• Formalize and Implement Action Plans: Every organization should have a response plan for every interaction with law enforcement, including receiving and responding to a Notice of Inspection (ICE Audit) and if law enforcement is ever present on-site. This includes determining who the official representative is and what chain they report to, as well as training front line staff who are likely to encounter officers first. 

Important attention should be paid to the role of the Form I-9 and E-Verify vendor in audit responses. Determine what level of audit and/or document production support your vendor may offer or you may need. During an ICE audit, organizations only have three days to produce all Forms I-9 and related documents for all employees. Vendors can make meeting this deadline exceedingly easy – or impossible – and it is important to know where you sit ahead of time.

• Review Agreements with Staffing Agencies or PEOs: Staffing agencies are thought to be a priority for worksite enforcement under the incoming administration. Companies who use them should review their agreements to ensure that the employment authorization verification duties are clearly spelled out, what type of support the vendor will give during an audit, and any indemnification provided if the vendor provides unauthorized labor.

• Enhanced Communication with Employees: Foreign national employees are highly likely to suffer anxiety surrounding their immigration status in the United States – or the immigration status of a loved one. Companies should consider holding Town Halls or otherwise communicating with foreign nationals about their status and if the organization is making any changes to their immigration policies. 

• Monitor Legal Developments: Use resources available to you, including those available from i9Success, to keep tabs on enforcement trends and regulatory changes.

Parting Thoughts

As stated earlier, each change in administration brings with it new priorities and policy prescriptions which presents opportunities and challenges to human resource practitioners. By implementing the above now, practitioners can better serve their business stakeholders as well as providing empathetic allyship to their employees.