As President-elect Donald Trump prepares to return to the White House in 2025, employers should anticipate a significant increase in Form I-9 employment verification audits. Jorge R. Lopez, a shareholder at Littler Mendelson P.C., emphasized that this increase will be “across the board,” signaling a robust focus on immigration compliance under the new administration.
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Historical context in Form I-9 audits and anticipated increase
Although audits are anticipated to increase significantly next year, Lopez pointed out that the Obama administration was one of the leaders in conducting Form I-9 audits, performing nearly 4,000 of them annually. However, the Biden administration significantly decreased the number of Form I-9 audits, conducting fewer than a quarter of those performed during former President Barack Obama’s administration.
“But I think Trump was heading in the direction of about 12,000 in his last year that actually got truncated by COVID,” Lopez, who has practiced immigration law for more than 30 years, added.
He further elaborated that employers should anticipate a surge in Form I-9 audits in the future not only due to the audit trends observed during Trump’s initial term but also in the existing, well-established infrastructure that facilitates these audits. The cost-efficiency of deploying such audits means they can be rolled out swiftly and in large numbers.
Industries targeted for Form I-9 audits
Lopez said that industries such as agriculture, hospitality, construction, and manufacturing have consistently been subject to these types of audits and are expected to continue being key targets for scrutiny in 2025 and beyond.
Importance of regular internal audits
Lopez said it is advisable for employers to conduct regular internal audits, potentially with the assistance of legal counsel. “Make sure that the key team in charge is properly trained and understands the process well,” he cautioned.
Utilizing spot audits to maintain compliance
Lopez also suggested that using spot audits to detect error trends, and then expanding them into comprehensive evaluations, can effectively maintain due diligence. He stressed that employers should handle these processes with seriousness and attention to detail, as this is crucial for demonstrating compliance, especially if federal authorities initiate reviews.
Evaluating Form I-9 compliance and management systems
When it comes to providers offering Form I-9 compliance and management systems to adhere to federal regulations, Lopez said that while these tools can be valuable for organizing processes and reducing paperwork errors, employers should ensure that the systems have been thoroughly vetted and are consistent with federal requirements.
“Some vendors are better than others but having a good I-9 case management system would be one good starting point,” he said.
Advantages and considerations of using E-Verify
Although E-Verify is not mandatory for most employers, Lopez thinks that incorporating its use into Form I-9 compliance can be advantageous. “I can see various benefits from it,” he began. “It can address the issue of whether or not a person is properly authorized from the get-go.” He added that determining if E-Verify is ultimately helpful for an employer “is going to be on a case-by-case scenario.”
He further explained that while E-Verify does not guarantee compliance, “it can be used as an instrument to be a viable management system to show compliance from a due diligence perspective, which is what the Feds look at.”
Necessity of a knowledgeable core team for Form I-9 process management
Lopez stressed the importance of having a knowledgeable and well-trained core team to manage the I-9 process. “You’re only as good as your lowest common denominator from a compliance perspective,” he said.
Lopez asserted that ensuring the team, whether managing external counsel, vendors, or overseeing the process internally, fully understands and adheres to federal requirements is essential for compliance and demonstrating a commitment to ethical practices.
Cost of Form I-9 violations
There can be a high cost for Form I-9 violations. For example, penalties for Form I-9 paperwork violations range from $281 to $2,789 for the first offense, covering substantive violations or uncorrected technical errors.
For violations related to recruiting, referring, or rehiring unauthorized non-citizens, the penalties range from $698 to $5,579 for each unauthorized worker knowingly employed as a first offense. For second and subsequent offenses, penalties increase to a range of $5,579 to $27,894 per violation.
The U.S. Department of Homeland Security (DHS) announced these increased fines against employers on June 28, 2024, as per its annual inflation adjustments for certain civil monetary penalties this year.
Federal agency guidance for conducting internal Form I-9 audits
From a federal agency point of view, U.S. Immigration and Customs Enforcement (ICE) provides guidance for employers conducting internal Form I-9 audits. It covers the purpose and scope of audits, best practices for avoiding discrimination, procedures for correcting errors, managing various audit scenarios, and addressing issues with work authorization.