Preparing for I-9 Audits Under the Trump Administration

Changing U.S. immigration policy was a cornerstone of Donald Trump’s presidential campaign and President Trump has stayed true to this campaign promise during his first 100 days. An important component of the administration’s immigration policy is “turning off the jobs and benefits magnet” that attracts foreign workers. Within days of Trump’s inauguration, he signed an executive order directing the Department of Homeland Security to hire 10,000 more Immigration and Customs Enforcement (ICE) agents (as well as 5,000 more Border Patrol agents). With a renewed focus on ferreting out unauthorized workers and an increased workforce to do so, Arkansas employers should be prepared for an increased number of site visits and I-9 audits.

During an ICE audit, employers can find themselves in trouble not only if they have unauthorized workers, but (more commonly) because they did not properly prepare or maintain their I-9 forms for each employee. And penalties can be steep – fines generally start around $200 and go up to several thousand dollars per offense. In 2015, a California company was fined over $600,000 because it failed to properly complete I-9 forms for its employees.

So what should employers do to prepare? First and foremost, do not wait until ICE is on-site demanding to see all of your I-9 forms before you begin looking at how your company is preparing and maintaining I-9 forms. Instead, employers should conduct an internal I-9 audit to identify and correct potential problems now. In fact, an annual audit is on ICE’s list of “Best Employment Practices.” Another reason to conduct an internal audit is that employers are given a “safe harbor” if ICE discovers an unauthorized worker and the employer has properly prepared and maintained its I-9 forms.

Unfortunately, self-audits can create more problems when employers choose to perform the audit internally and then commit mistakes that lead to further violations. Common mistakes include filling out new I-9s for employees and throwing the old ones away, making revisions to I-9 forms without signing and dating the change, and preparing new I-9 forms to correct mistakes and backdating them so they appear to be timely. Even if these mistakes are “innocent,” they can lead to stiff fines. Therefore, the better practice may be to engage an outside firm to perform the audit, especially if it is the company’s first internal audit or if the company suspects there may be issues. An internal audit is also an opportunity to update I-9 policies and to train employees on proper procedures to prevent future mistakes.

Employers sometimes ask if they should be using E-Verify to verify an individual’s work authorization. Trump has also suggested that E-Verify should be mandatory for all employers, as it is already for most federal contractors. Employers should keep in mind, however, that E-Verify is separate from Form I-9; it does not replace it. In other words, you still need to ensure that you are properly preparing and maintaining a Form I-9 for each current employee and for former employees for at least year after his/her termination.

An internal I-9 audit is the best way to achieve this.