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 challenges

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).

Tips to manage Form I-9 compliance challenges

Conduct internal audits

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.

Remember that technology does not guarantee compliance

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.

Trust the experts

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.