Publication
Are You Ready? Why Employers Should Audit Their Forms I-9 Now
The federal government’s message to employers has become increasingly clear: worksite immigration enforcement is back.
Recent statements by White House Border Czar Tom Homan, coupled with expanded funding for immigration enforcement and revised U.S. Immigration and Customs Enforcement (ICE) guidance on Form I-9 violations, indicate that employers should anticipate a substantial increase in Form I-9 inspections and workplace enforcement actions over the coming months. While the timing and scope of future enforcement efforts remain to be seen, employers should not wait for a government inspection before evaluating their compliance. A proactive review today may significantly reduce liability tomorrow.
Why This Matters
In a recent interview with the Center for Immigration Studies, Homan outlined the administration’s plans to expand worksite immigration enforcement. According to Homan, the administration intends to significantly increase Form I-9 inspections and “hold employers accountable” for violations of federal employment verification laws. He also indicated that enforcement efforts will involve greater coordination among ICE, the Department of Labor, the Internal Revenue Service, the Social Security Administration, and the Department of Justice.
Those statements are consistent with recent changes to ICE’s enforcement guidance. Earlier this year, ICE revised its approach to Form I-9 violations by narrowing the types of errors considered merely technical or procedural. As a result, employers may have fewer opportunities to correct deficiencies after receiving a Notice of Inspection, increasing the importance of maintaining compliant Forms I-9 before an audit occurs.
For many employers, the greatest exposure does not stem from knowingly employing unauthorized workers. Rather, it arises from incomplete, inaccurate, or improperly maintained Form I-9 records. Even employers with robust hiring practices frequently discover documentation errors during internal compliance reviews.
Steps Employers Should Consider
Employers can use this period to evaluate their Form I-9 compliance programs before enforcement activity increases. Practical measures include:
- Conducting a privileged internal Form I-9 audit under the direction of counsel.
- Correcting existing deficiencies in accordance with applicable ICE guidance.
- Reviewing onboarding, reverification, and document retention procedures.
- Confirming that electronic Form I-9 systems comply with current Department of Homeland Security requirements.
- Training human resources personnel responsible for completing and maintaining Forms I-9.
- Establishing a response plan for an ICE Notice of Inspection or other worksite enforcement action.
The Bottom Line
An ICE inspection often begins with only a few days’ notice. By the time a Notice of Inspection arrives, an employer’s ability to correct deficiencies may be significantly limited. Companies that assess their compliance before a government audit are better positioned to respond to an inspection, minimize potential penalties, and demonstrate a good-faith commitment to compliance.
About Snell & Wilmer
Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 500 attorneys practicing in 17 locations throughout the United States and in Mexico, including Phoenix and Tucson, Arizona; Los Angeles, Orange County, Palo Alto and San Diego, California; Denver, Colorado; Washington, D.C.; Boise, Idaho; Las Vegas and Reno-Tahoe, Nevada; Albuquerque, New Mexico; Portland, Oregon; Dallas, Texas; Salt Lake City, Utah; Seattle, Washington; and Los Cabos, Mexico. The firm represents clients ranging from large, publicly traded corporations to small businesses, individuals and entrepreneurs. For more information, visit swlaw.com.
