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During the first Trump administration, U.S. Immigration and Customs Enforcement (ICE) ramped up investigations for Form I-9 violations. From 2017-18, I-9 investigations increased 340%, workplace criminal arrests rose 460%, workplace administrative arrests jumped 787% and the number of workplace enforcement cases initiated increased 305%.
Regardless of the election outcome, companies should be proactive about I-9 compliance — especially in the event of a second Trump term. Here are some reminders concerning I-9 compliance and tips to safeguard your organization from potential I-9 violations and penalties.
Form I-9, Employment Eligibility Verification, is the form all U.S. employers are required to use by law to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date).
While maintaining compliance with Form I-9 obligations may appear straightforward, there are varied rules and requirements around what documentation employees may present to verify their identity and authorization to work, and how the employer must record and maintain that information.
Requirements associated with Form I-9 also change frequently. For example, rules around automatic extensions of certain employment authorization documents have evolved significantly in recent years. The government also launched a new “virtual” I-9 review option for certain E-Verify employers in 2023 that brought its own opportunities and challenges for employers.
Violations found during a government I-9 audit can result in steep fines and penalties for the employer. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2024, fines range from $281 to $2,789 per I-9 violation. In addition, employers that fail to administer their employment eligibility verification programs in a nondiscriminatory manner may be subject to investigation by the U.S. Department of Justice Immigrant and Employee Rights Section (IER).
Companies regularly work with in-house counsel to audit their financial and tax records as part of their routine compliance regime. The same should be true of I-9 records. You should proactively conduct internal I-9 audits to ensure you are compliant with all I-9 requirements and prepared in the event of an official government audit.
Since penalties are assessed for each noncompliant I-9 form, they can quickly multiply if, for example, the same incorrect procedure is applied across multiple I-9 forms. If your company’s self-audit turns up I-9 errors and HR tries to correct them internally, it is critical to ensure the correction is both accurate and adheres to appropriate procedures.
Companies often use commercial or proprietary Form I-9 software programs to complete the Form I-9 and E-Verify processes. In a fact sheet released in December 2023, IER and ICE stressed that using such programs do not “guarantee an employer’s compliance with federal law.”
Your organization remains liable for any errors or violations on the Form I-9, regardless of whether you leverage an electronic system. For this reason, you should fully vet any Form I-9 software before transitioning to an electronic solution and put in place rigorous quality control measures.
The simplest way to ensure compliance is to partner with a law firm that specializes in immigration law, is well-versed in the various Form I-9 requirements and is at the forefront of changes in policy and government enforcement trends.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complex matters such as I-9 audits.
Contact our team of I-9 legal experts to discuss how we can help ensure compliance in preparation of potential audits.
An important I-9 deadline will arrive next week. The Biden administration extends Temporary Protected Status for Sudan and Ukraine. And European countries move to establish a new travel authorization system. Get the news and more on this episode of the BAL Immigration.
Get this news and more in the new episode of BAL’s podcast, the BAL Immigration Report, available on Apple, Spotify and Google Podcasts or on the BAL news site.
This alert has been provided by the BAL U.S. Practice group.
Copyright ©2023 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries, please contact copyright@bal.com.
The Department of Homeland Security publishes a much-anticipated Form I-9 rule. USCIS announces it will conduct a second H-1B registration lottery. And a closer look at two recent Supreme Court cases and their impact on DACA litigation.
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The Justice Department questions states’ standing to challenge DACA. Proposed H-2 regulations are under White House review. And a new Form I-9 rule is in the works — but may not take effect in time for employers relying on COVID-related flexible measures.
This alert has been provided by the BAL U.S. Practice Group.
The Form I-9, Employment Eligibility Verification, is the form employers are required by law to use to verify that new hires are authorized to work in the United States. Employers must also “re-verify” the employment authorization of employees who have temporary forms of work authorization (i.e., with an expiration date). The Form I-9 is available free of charge on the U.S. Citizenship and Immigration Services (USCIS) website: www.uscis.gov/I-9.
Check out this video made by USCIS regarding the Form I-9.
Yes, the law imposes strict timeframes. The employee must complete Section 1 of the form no later than the first day of employment, which is the date that employment for wages or other remuneration begins. The earliest time an employee may complete Section 1 is after accepting a job offer from the employer.
Within three business days of the first day of employment, the employee must present documentation deemed acceptable by the government to demonstrate both identity and authorization to work in the U.S. The employer must physically review the employee’s original document or combination of documents, and complete Section 2 of the Form I-9 within three business days of the employee’s first day of employment. If the employee will work for the company for fewer than three days, both Section 1 and Section 2 of the Form I-9 must be completed no later than the first day of employment.
A previously established 30-day grace period (that was imposed due to COVID restrictions) is ending on July 31. Listen to the full update implications on BAL’s Immigration Report, episode 23, available here.
All employers must complete and retain Form I-9 Employment Eligibility Verification for every person they hire for employment after Nov. 6, 1986, in the U.S., as long as the person works for pay or other type of payment.
In the Commonwealth of the Northern Mariana Islands (CNMI), employers have had to complete Form I-9 CNMI for every employee hired for employment in the CNMI from Nov. 28, 2009, to Nov. 27, 2011. The standard Form I-9 must be used for employees hired on or after Nov. 28, 2011.
In the event of an I-9 audit, either Immigration Customs Enforcement (ICE) or Homeland Security Investigations (HIS) will issue the employer a Notice of Inspection at least three days ahead of the intended audit. The Notice of Inspection will indicate whether the officials will ask for documentation to be sent in or whether the officials will visit the employer’s workplace.
Employers should proactively conduct internal I-9 audits to ensure they are compliant with all I-9 requirements and prepared in the event of an official audit. Failing an audit could result in fines and penalties on the employer including, but not limited to, criminal penalties (where there are repeat offenses), possible debarment from government contracts, as well as negative impacts on business reputation. The Department of Homeland Security recently increased fines for I-9 paperwork violations. As of 2022, fines range from $252 to $2,507 per I-9 form. Therefore, it is crucial that you prepare in advance to ensure appropriate I-9 maintenance.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs, as well as assist with complicated I-9 audit preparation. Contact us for more information!
In some cases, employers are not required to complete or keep a Form I-9. Employers are required to complete and retain a Form I-9 for every employee they hire for employment in the United States, except for:
Employers can find more information about the Form I-9 requirements in the USCIS Handbook for Employers on the USCIS website.
BAL has an entire team of professionals who can assist companies in running I-9 compliance and E-Verify programs. Contact us for more information!
All companies, regardless of size, sector or type of workforce, are subject to investigation by Immigration and Customs Enforcement (ICE), to verify that their employees are authorized to work and that they have properly completed I-9 forms for all employees hired after Nov. 6, 1986. A company that receives a notice of inspection must be able to produce its I-9 Employment Eligibility Verification forms within three business days. If you’re an HR manager and ICE comes knocking, are you prepared?
ICE is dramatically ramping up investigations of all types of employers for I-9 violations. An electronics company was raided last month in the largest workplace immigration sweep in a decade. Notably, the investigation preceding that raid began as an inspection of the company’s I-9 forms after ICE received multiple tips that the company, a Texas office owned by New Jersey-based CVE Technology, may have hired undocumented workers presenting false IDs. The I-9 audit uncovered “numerous hiring irregularities,” according to ICE, leading to a raid in which nearly 300 employees were arrested.
I-9 violations can lead to steep fines, but a regular review can help employers detect errors and avoid penalties. A recent decision in which a New York cleaning company was assessed $44,000 in fines for I-9 violations is a wake-up call for companies to audit their I-9s as soon as possible. Companies should also consider establishing best practices and implementing written I-9 policies and train their staff. Even though the New York employer’s violations all occurred before a new schedule of higher I-9 penalties took effect in 2016, the I-9 errors remained uncorrected and were therefore deemed to be “continuing violations” that carried over into 2016. As a result, the company’s fines were assessed under the increased range of penalties—double the previous range it would have been assessed had it discovered and fixed the errors earlier.
When it comes to the 1-9 compliance minefield, however, good intentions and self-audits can sometimes do more harm than good. One example, where missteps are common, is when a company’s self-audit turns up I-9 errors and HR tries to correct them. HR must make sure the correction is both accurate and adheres to appropriate procedures, particularly where a new I-9 form is created to correct an original, which must still be retained on file. Since penalties are assessed for each noncompliant I-9 form, they can quickly multiply if, for example, HR applies the same incorrect procedure across multiple I-9 forms. For these reasons, companies should not try to audit themselves and should engage an attorney who specializes in I-9 compliance.
In addition to costly fines, companies risk reputational damage for I-9 noncompliance. The Trump administration has not been quiet in raiding employers—it’s using a bullhorn and amping up the volume. Early on, the administration promised to prioritize investigation of employer abuse in visa programs. The April 2017 “Buy American and Hire American” Executive Order directed federal agencies to protect American workers through various measures, including greater scrutiny of employers. In September 2017, ICE levied a whopping $95 million settlement with a nationwide tree company for I-9 violations, including both civil and criminal fines. The settlement also put employers on notice that immigration authorities would leverage reputational harm and violators should expect their names to be splashed across the news. Asplundh Tree Company has become a poster child of I-9 noncompliance. No company wants to be the next example.
Shortly after the settlement with Asplundh, ICE announced that it would quadruple workplace investigations—and it has made good on that promise. From 2017 to 2018, I-9 investigations increased 340%, workplace criminal arrests rose 460%, workplace administrative arrests jumped 787% and the number of workplace enforcement cases initiated increased 305%. New cooperation and information-sharing agreements between federal agencies including the Department of Homeland Security, the Labor Department and the Justice Department mean that a company’s violation in one area of the law could turn into an investigation into other areas.
Companies regularly audit their financial and tax records as part of their routine compliance regime. The same should be true of I-9 records. An I-9 review is an essential business practice, especially in the current enforcement-heavy environment.
L. Ruth Clark is a Partner in the Houston office of Berry Appleman & Leiden LLP.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.