Preparing for Changes in Employment Verification Under the New Administration
Navigating Employment Verification Under New Immigration Enforcement Policies
As the United States enters a new phase of immigration policy enforcement under President Donald Trump’s second term, businesses must be prepared for heightened scrutiny on employment verification and compliance. Employers will need to ensure that their hiring practices align with evolving federal requirements to avoid penalties and legal challenges.
Strengthened Form I-9 Compliance
One of the most critical areas of focus for businesses is compliance with Form I-9, the document required to verify the identity and employment eligibility of workers in the U.S. Failure to properly complete and retain Form I-9 records can result in hefty fines, particularly during Immigration and Customs Enforcement (ICE) audits.
Additionally, E-Verify, the electronic system used to confirm employee eligibility, may see increased use. While currently mandatory for some federal contractors and in certain states, there is a possibility of expanded nationwide implementation.
To stay compliant, employers should:
Conduct periodic internal audits of I-9 forms to correct errors before an ICE inspection.
Ensure HR and hiring managers are well-trained in completing and retaining I-9 documents.
Consider whether opting into E-Verify aligns with their business needs.
Worksite Enforcement and Increased Inspections
Worksite investigations are expected to become a priority, particularly in industries that historically employ large numbers of foreign workers. Between 2017 and 2020, worksite enforcement actions—including Form I-9 audits and ICE workplace inspections—increased significantly, and similar trends may emerge in the coming years.
Employers should:
Designate a company representative to handle inspections and government inquiries.
Establish clear protocols for responding to worksite investigations.
Maintain complete and up-to-date employment verification records.
Understanding Worksite Raids and Legal Considerations
In certain cases, ICE may conduct worksite enforcement actions that involve the detention of unauthorized workers. Employers should understand the legal framework surrounding such actions, including the difference between administrative warrants and civil search warrants.
Key employer rights and best practices include:
Understanding that administrative warrants do not grant ICE entry into private workspaces without consent.
Ensuring employees are aware of their rights, including the right to remain silent and request legal counsel.
Preparing legal counsel to respond swiftly to enforcement actions.
Preventing Discriminatory Hiring Practices
Alongside increased enforcement, employers should remain vigilant about compliance with anti-discrimination laws. The Department of Justice’s Immigrant and Employee Rights (IER) division monitors employer practices to prevent unfair treatment based on citizenship or national origin.
To avoid legal pitfalls:
Employers should apply uniform hiring practices to all applicants, ensuring fair treatment of U.S. workers and foreign nationals alike.
HR teams should receive training to prevent document abuse, such as requesting additional or specific forms of identification from non-citizen applicants.
Employers should regularly review job postings and hiring policies to eliminate unintentional biases.
Compliance with Visa Program Regulations
For businesses that employ foreign workers through visa programs such as H-1B, H-2A, or H-2B, compliance with Department of Labor (DOL) audits will be crucial. The Wage and Hour Division (WHD) of the DOL enforces wage and labor standards, and employers should expect increased scrutiny on labor condition applications (LCA) and prevailing wage compliance.
Key employer obligations include:
Maintaining detailed payroll records that align with visa requirements.
Ensuring job duties and locations match those outlined in visa petitions.
Being prepared for DOL audits, which may include payroll reviews and employee interviews.
FDNS Site Visits and Fraud Detection Measures
The Fraud Detection and National Security (FDNS) division of U.S. Citizenship and Immigration Services (USCIS) is expected to continue site visits to ensure employers comply with immigration laws. These visits may be unannounced and conducted at employee worksites, home offices, or third-party locations.
Employers can prepare by:
Keeping accurate records of job descriptions, wages, and work locations.
Training HR representatives to respond to FDNS inquiries professionally and legally.
Assigning a designated company representative to manage government site visits.
Proactive Steps for Employers
Given these anticipated changes, businesses should take proactive measures to mitigate risk and ensure compliance with immigration and employment laws. Employers can:
Conduct internal I-9 audits to identify and correct errors.
Implement regular HR and compliance training to align hiring practices with legal requirements.
Develop clear legal response plans for ICE audits, worksite investigations, and site visits.
Conclusion
As immigration enforcement policies evolve, businesses must remain informed and prepared. By strengthening Form I-9 compliance, implementing fair hiring practices, and preparing for potential audits and investigations, employers can navigate these changes effectively while maintaining a compliant and legally sound workforce.