As discussed in a previous post, the incoming Department of Homeland Security (DHS) is expected to address immigration in the next term, including worksite enforcement and compliance. Based on actions the previous Trump administration’s record and campaign trail promises, we expect the DHS to focus on the following issues:
I-9 Audits
During President-elect Trump’s first term, Immigration and Customs Enforcement (ICE) significantly increased the number of I-9 audits they conducted. Under prior administrations, ICE audits averaged between 3,000 and 3,500 per year. However, under former President Trump, the number shot up to 5,981 and 6,450 during his first two years in office, respectively. In fact, the administration’s original goal was to conduct 6,000 audits per month, but the pandemic prevented this from happening. We expect to see this quota again.
I-9 Verification Reform
Under the Biden administration, employers may complete the I-9 Employment Eligibility Verification process remotely via videoconference. The remote aspect of the verification has been controversial. The new administration likely will reinstate in-person verification.
Evaluation of Electronic I-9 Systems
DHS likely will also focus on the compliance of electronic I-9 systems. The agency could impose penalties for system flaws or defects even in cases where the I-9 forms are valid.
Increased Hiring of Auditors
Not surprisingly, DHS will need to hire more auditors to meet its quotes, and may even outsource a percentage of them.
Increased Raids
Based on the raids DHS conducted during former President Trump’s last term, one of which resulted in the detaining of 100 employees, employers definitely should expect future raids and a substantial loss in workforce.
Joint Employment
In cases where employers rely on staffing agencies for temporary workers, employers should scrutinize the compliance that these agencies implement. Otherwise, employers may face joint employment claims in this area.
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In light of the anticipated increase in DHS oversight and enforcement, employers and their counsel should conduct internal audits of their I-9 forms and evaluate their policies and procedures, including electronic I-9 system compliance. They should correct any defects immediately to minimize the potential for an audit or raid. And, as always, training in this area will be key, particularly for employees who are involved in completing and verifying I-9 forms.
