As President-elect Donald Trump prepares to assume office, companies across various sectors are anticipating a significant increase in immigration audits. During Trump’s first term, the number of I-9 audits, which verify employees’ eligibility to work in the U.S., surged dramatically. With the expectation of a similar immigration enforcement, businesses should take proactive measures to ensure compliance and mitigate potential risks.
Here are some key takeaways:
Increase in Form I-9 Audits and Immigration Enforcement Actions
President-elect Trump has publicly emphasized immigration enforcement and we expect employers to see increased unannounced worksite visits and increased I-9 audits. President-elect Donald Trump has announced that Tom Homan, former acting director of U.S. Immigration and Customs Enforcement (ICE), will serve as the border czar for the incoming Administration. Under the direction of Homan, from October 1, 2017 through May 4, 2018, Homeland Security Investigations (HSI) opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. The regulatory penalties for paperwork violations can be substantial (up to $2,789 for each paperwork violation, even for minor omissions). Additionally, fines of up to almost $28,000 can be imposed for unauthorized workers, depending on the frequency of the violation.
The new Administration is expected to increase enforcement of workplace rules related to the employment of non-U.S. workers, focusing on compliance enforcement actions by the Departments of Homeland Security and Labor. Employers should anticipate more worksite visits, with increased inspections and compliance audits by Immigration and Customs Enforcement (ICE), particularly targeting industries with high numbers of immigrants in their labor force. ICE officers may show up unannounced at worksites to interrogate employees and to arrest immigrants who were previously ordered to depart the United States. Industries that rely heavily on immigrant labor, such as agriculture, construction, food processing, hospitality, and manufacturing, are likely to be prioritized for audits and inspections.
Reinstitution of the Buy American and Hire American Policy
The Buy American and Hire American (BAHA) policy, an Executive Order issued under the prior Trump Administration aimed at protecting U.S. labor interests by prioritizing American workers and reforming immigration policies, is expected to be reimplemented. This Executive Order resulted in federal agencies scrutinizing applications for employment-based visas that resulted in increased denials. Since the recent elections, we are already seeing consular officers making inquiries into the merit of visa applications based on not being convinced that a U.S. worker could not perform the job being offered to the foreign-national worker.
Additional Anticipated Changes
Travel bans related to countries of origin.
- Review of U.S. Citizenship and Immigration Services (USCIS) filing fees and increased vetting of applicants, including reinstatement of mandatory biometrics.
- Changes to H-1B visa rules to allow only the best and brightest to obtain H-1B status, including increasing the required wage level.
- USCIS’s Fraud Detection and National Security unit may conduct unannounced site visits to verify compliance with immigration regulations. Companies that sponsor foreign national workers under employment-based visas (e.g., H-1B, L-1, and O-1) will be impacted.
- Revocation of humanitarian-based statuses that allow for work authorization, such as Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and Humanitarian Parole. This could result in the loss of labor force for certain employers.
- Increase in requests for additional evidence (RFEs), denials of petitions without an RFE, refusals of work-based visas at U.S. consulates, lengthy processing times, and other administrative hurdles meant to delay or deny the grant of employment-based visas or work authorization.
- Improper verification and onboarding practices for new hires and discrimination claims based on national origin or citizenship status could lead to investigations by the Department of Justice. For example, investigations can be triggered by improper language in company job postings, recruitment, or onboarding practices.
Steps Employers Can Take Now in Anticipation of the New Administration
- Conduct a robust I-9 audit to ensure your organization is fully compliant with employment verification requirements and remediate any errors. Enlist experienced immigration counsel to assist to ensure a comprehensive and effective process. The audit should involve not only a review of I-9 files but also an assessment of the company’s onboarding processes.
- Audit your recruitment process to eliminate potential accusations of citizenship status discrimination. Restricting job opportunities to specific nationalities, without a legal justification, can be the basis for a Department of Justice investigation for citizenship status discrimination.
- Reserve the right to require an audit of the I-9 files of your vendors that supply workers to work onsite at your location. Any missteps by your vendor may impact your organization negatively. An enforcement action by ICE could result in the loss of labor force at your worksite. Additionally, knowledge by your employees of the unauthorized status of vendors’ employees at your worksite could result in civil and criminal liability for individual employees and your organization.
- To the extent possible, submit applications for extensions of status for sponsored foreign national workers who are eligible for such filings before January 20, 2025 (noting that extensions cannot be filed before six months of expiration).
- Assess any plans for reduction in force to ensure that labor certification applications for sponsored workers are not being filed within six months of such an event for similarly situated U.S. workers in related occupations.
Typically, employers’ make detrimental mistakes during initial stages of audits and compliance investigations. Now is the time to take proactive steps to ensure meticulous compliance across companies’ hiring and onboarding practices, including conducting a robust I-9 audit and adjusting recruitment and onboarding processes to ensure compliance.
Consult with our Immigration Team about factors unique to your business or industry to obtain guidance on how to strategically prepare for these immigration changes and minimize potential corporate liability. We are here to support your business to ensure it remains compliant and prepared for any policy changes.
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If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration Team.