US employers are being warned of the federal government’s growing focus on I-9 audits and worksite enforcement actions. We expect this momentum will likely ramp up further under the new Trump Administration, and employers should anticipate a higher likelihood of being audited.

 

I-9 Auditing & Enforcement Drive

 

Homeland Security Investigations (HSI), the workplace enforcement arm of the Department of Homeland Security (DHS), plans to implement ambitious quotas for I-9 audits and enforcement, potentially initiating as many as 6,000 audits per month across its 30 offices nationwide, reviving a pre-pandemic goal set during the previous Trump Administration.

Employers operating under specific circumstances are being prioritized under the current enforcement strategy, reflecting a focused approach to address areas of heightened concern and vulnerability.

One category of priority includes employers with outstanding Notices of Inspection (NOIs). These cases, which were delayed during the pandemic and the Biden administration, are now being revisited with renewed emphasis on compliance and resolution. Employers who previously failed to address identified deficiencies in their I-9 processes or were fined for noncompliance will also face heightened scrutiny, as enforcement agencies aim to target repeat offenders or those demonstrating a lack of corrective action.

Another focus is on employers accused of gaining a competitive advantage through undocumented labor. Employers that exploit undocumented workers by paying lower wages are being prioritized, as such practices create an uneven playing field and violate labor and immigration laws. Industries characterized as high-risk, such as agriculture, hospitality, food processing, and construction, are particularly targeted because of their higher reliance on undocumented workers, making them “low-hanging fruit” for enforcement efforts.

Finally, employers in sectors with critical infrastructure access—such as airports and military contractors—are receiving special attention due to national security concerns. These employers face intensified scrutiny, as unauthorized individuals working in sensitive environments could pose security risks. By focusing on these priority areas, enforcement agencies aim to address compliance gaps in industries and contexts with significant impact on economic, security, and labor integrity.

 

Penalties for Violations

 

While administrative fines for I-9 violations will remain a tool for enforcement, the primary focus will shift toward criminal prosecution. HSI aims to use I-9 audits as a gateway to prove employers knowingly hired undocumented workers. The ultimate goal is to dismantle the employment magnet for undocumented labor, discouraging businesses from bypassing immigration laws. Worksite raids, which may involve military or National Guard support, are expected to become more frequent and impactful, disrupting operations significantly.

Upcoming raids are expected to be larger, more coordinated, and geographically widespread. For employers, the potential for losing a large portion of their workforce—even without being criminally charged—poses significant operational challenges.

To prevent employers from using staffing agencies or contractors to obscure the employment of undocumented workers, HSI will intensify its focus on joint employment arrangements. Multi-agency task forces, involving HSI, the Department of Labor, the Department of Justice, and state agencies, will formalize their efforts to hold employers accountable for workers employed indirectly.

The Biden administration introduced updates to the I-9 Employment Eligibility Verification process, including allowing remote verification via videoconference. However, this modernization initiative has been contentious and may be rescinded by the incoming administration. Employers using remote I-9 completion should monitor for policy changes and be prepared to adapt their processes accordingly.

Electronic I-9 systems provided by third-party vendors will face heightened examination, particularly their audit trails. A recent case involving a defective electronic system resulted in a $24 million fine, highlighting the risks of relying on inadequate technology. Employers using such systems must ensure their compliance features are robust and meet regulatory standards.

 

Preparing for I-9 Audits

 

Employers can take proactive measures to prepare for the increased likelihood of I-9 audits and enforcement. Key steps include:

 

a. Conduct Internal Audits

Review current I-9 processes and documentation to identify deficiencies. Ensure all I-9 forms are completed accurately and in compliance with the latest regulations.

 

b. Remediate Deficiencies

Address any issues uncovered during internal audits. This may include correcting errors, updating procedures, and ensuring consistency with federal requirements.

 

c. Evaluate Workforce Composition

Employers should assess the status of their workforce, including addressing undocumented employees, and take steps to align with legal requirements.

 

d. Enhance Compliance Training

Educate HR personnel and managers on I-9 compliance, emphasizing the importance of adhering to legal requirements and maintaining accurate records.

 

Need Assistance?

 

With the increased potential for audits, heightened scrutiny and site inspections, employers should be proactive to ensure compliance.

NNU Immigration supports US employers with their immigration compliance requirements through a range of services, including mock audits, training and strategies for responding to NOIs or worksite inspections. Our experienced immigration attorneys can help guide your compliance efforts and minimize the risk of fines, operational disruption and reputational damage.

For specialist advice, contact us.