All employers are required to verify the identity and employment authorization of each employee they hire via a completed and retained Employment Eligibility Verification Form I-9. With immigration policy at the forefront of the Trump administration’s priorities, it is anticipated that employers will see a surge in I-9 audits. Employers can take proactive measures now to reduce their risk of non-compliance.
On January 20 and 21st, President Trump published the following Executive Orders:
- “Ending Radical and Wasteful Government DEI Programs and Preferencing”
- “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”
The Executive Orders revokes several existing Executive Orders requiring the use of DEI principles in federal hiring and contracting practices. Additionally, all federal contracts and grants are now required to contain a provision where recipients must certify that they do not “operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws” and stipulate that the contract or grant will be terminated if the recipient does engage in illegal DEI practices.
These Executive Orders have sent the message that the Trump Administration intends to pursue a very similar agenda as the previous Trump Administration with a renewed vigor. This would include the roll-back of the Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), restrictions on employment-based visas, and a push for a merit-based immigration system. Additionally, federal agency and department head leaders have been given the directive to evaluate their sector of the economy to identify private businesses practicing “illegal DEI” for potential regulatory or compliance investigations.
Given this, legal experts specializing in immigration are anticipating increased audits and potential worksite visits with the administration’s heightened scrutiny on immigration. This trend has led to a surge in interest from clients seeking help on I-9 compliance, with many conducting extensive internal audits.
As an employer, what are some of the considerations you and your HR team need to be considering related to I-9 compliance?
- Common Mistakes: Even businesses with strong compliance programs can inadvertently make mistakes, such as not using the correct version of Form I-9, incomplete forms, late completion, over-documentation, misplaced documentation, or failure to adhere to retention rules.
- Potential Fines and Penalties: Substantive and uncorrected technical violations can be fined between $230-$2,292 per I-9 with errors. Employers who knowingly employ undocumented workers can face significant fines and penalties, including business license revocation and even imprisonment. Fines can be between $573 to $22,927 per unauthorized individual for knowingly employing an unauthorized worker.
- Audit Process: An I-9 audit is initiated when U.S. Immigration and Customs Enforcement (ICE) serves an employer with a Notice of Inspection. This requests the employer produce Form I-9 for all current and terminated employees within the retention window, along with relevant supporting documentation within three business days of the request.
- Audit Recommendation: To mitigate risks, it’s recommended that employers audit their I-9 records. This helps to discard any forms that no longer need to be maintained and correct any errors.
- Importance of Recordkeeping: Regular audits of I-9 records can help employers identify errors and weaknesses in compliance procedures, correct mistakes, and strengthen their processes ahead of government audits.
- Prepare your Team for a Potential Worksite Visit: Speak to your legal counsel about your rights should your business be selected for an ICE Form I-9 audit.
Lacking the time, resources or expertise to conduct a thorough I-9 audit? The Workforce Strategies advisors at RKL Virtual Management Solutions are here to help. With a deep bench of HR advisors who are current with I-9 compliance considerations, we can help you navigate these complexities and avoid common pitfalls and potential penalties associated with I-9 errors.
To learn more about RKL’s outsourced I-9 compliance services, contact your RKL advisor or Senior Workforce Strategies Analyst Lauren Stricker.
