ICE and other authorized agencies will likely initiate more administrative inspections (i.e., inspections of Form I-9, Employment Eligibility Verification) and worksite enforcement actions targeting industries that rely on migrant workforces. Employers should review their operations and prepare for possible government visits to mitigate the risk of exposure.
Administrative Inspections
The Immigration Reform and Control Act requires employers to verify the identity and employment eligibility of their employees and establishes criminal and civil sanctions for violations. Section 274A(b) of the Immigration and Nationality Act (INA) designates Form I-9 for purposes of documenting employment eligibility. The INA authorizes DHS, including ICE, the Department of Justice, Civil Rights Division, Immigrant and Employee Rights Section (IER), and the Department of Labor (DOL) to inspect an employers’ I-9 forms and supporting documentation.
On January 2, 2025, DHS announced new civil penalties for Form I-9 violations, with increased fines on employers for failure to comply with I-9 regulations:
- I-9 paperwork violations: increased from $288 to $2,861 per Form I-9 violation;
- Knowingly employing unauthorized employees (first offense): increased from $716 to $5,724 per violation;
- Knowingly employing unauthorized employees (second offense): increased from $5,724 to $14,308 per violation; and;
- Knowingly employing unauthorized employees (third or more offense): increase from $8,586 to $28,619 per violation.
The administrative inspection process is initiated with the service of a Notice of Inspection (NOI) on an employer. Employers have at least three business days to produce the I-9 forms and supporting documentation requested in the NOI. DHS’s Investigations Division (HSI) also typically requests that employers provide other documentation including a copy of the employer’s payroll, a list of active and terminated employees, articles of incorporation, and any business licenses. In assessing civil penalties in their prescribed ranges, HSI will typically apply various factors to determine any aggravating or mitigating circumstances. For current employees, employers are required to maintain for inspection all I-9 forms. For former employees, employers must retain I-9 forms for at least three years from the first day of employment or one year from the date employment ends. Employers may wish to review their document retention plans to ensure that they are retaining I-9s for the requisite time period and destroying them when the retention period ends.
Upon completion of the I-9 inspection, the government will notify the employer of its findings in writing by issuing a notice. This may include a (1) Compliance Notice; (2) Notice of Suspect Documents; (3) Notice of Discrepancies; (4) Notice of Technical or Procedural Failures; (5) Warning Notice; and (6) Notice of Intent to Fine (NIF). In the event of a NIF, which may be issued for substantive violations, uncorrected technical or procedural failures, or knowingly hiring and/or continuing to employ unauthorized employees, the employer may request a hearing before an Administrative Law Judge at the Office of the Chief Administrative Hearing Officer.
Employers should prepare for potential I-9 inspections by proactively conducting internal I-9 audits to ensure compliance. Employers should thoroughly review I-9 forms and consider conducting an internal audit to make corrections for any errors identified consistent with federal correction guidance. USCIS maintains a list of common Form I-9 mistakes. Employers should also look to organize and save I-9 forms and supporting documentation for current and former employees in a way that will allow the employer to timely produce necessary documentation to the government (i.e., within three days). Reviewing existing I-9 and other employment verification processes periodically to ensure consistent and accurate onboarding and employment verification procedures can also mitigate an employer’s risk. Should an employer identify procedural or other issues, it should consult with government investigations, immigration and/or employment counsel prior to taking any action with respect to an employee’s employment. Employers may also consider enrolling in E-Verify, DHS’s online system for employment eligibility verification, if not already enrolled.
Worksite Enforcement
Employment-related government visits to employer worksites and facilities will also continue to increase. While DHS, ICE, and DOL may perform visits, United States Citizenship and Immigration Services (USCIS) may also conduct on-site audits related to employment-based immigration sponsorship.
The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. Officers or agents may enter any public areas of a business, such as a lobby or parking lot. However, to enter non-public business premises, officers and/or agents must have a signed judicial search warrant or the employer’s consent. Notably, administrative warrants issued by DHS (i.e., Form I-200) or ICE (i.e., Form I-205) do not give agents official authority to enter a workplace without the employer’s consent.
Employers should not attempt to hide employees or assist anyone in leaving the premises, provide false or misleading information, or destroy documents or other evidence during a worksite visit. Employers should prepare for immigration worksite enforcement actions by establishing a response team. This includes designating and training key personnel who will be responsible for reviewing warrants, contacting legal counsel immediately, monitoring agents during searches, documenting the visit, and managing internal and external communications.
Conclusion
Employers must be prepared to demonstrate compliance with all employment-related immigration laws and take steps to mitigate exposure in the event of an administrative inspection and/or site visit.
This article was published first on HR Daily Advisor.
