Fact vs Fiction – Immigration Compliance in the Trump Era of Enforcement

Author: Jacob M. Monty

In the first 100 days of Trump’s administration, daily Immigration and Customs Enforcement (ICE) arrests have surged to 600 compared to 300 per day during the Biden administration. More frequent I-9 audits accompany this increase, and Trump’s border czar, Tom Homan, promises to reinstate worksite raids. Immigration enforcement remains a key focus of Trump’s agenda, reflecting one of his central campaign promises.

For employers and business owners, especially those with large immigrant workforces, no one can afford to think, “It won’t happen to me.” In an era rife with misinformation and fear, this guide aims to equip you with the knowledge to distinguish fact from myth.

How Do Investigations Start?

While some inspections are truly random, there are often specific triggers such as tips and complaints, identity theft, prior violations, and industry sweeps. Tips and complaints usually come from a disgruntled former employee, a competitor, or a member of the public who might report a business for hiring undocumented workers. ICE does follow up on credible tips. Even anonymous complaints can prompt an investigation.

Innocent bystanders who had their identity stolen will report that their Social Security Number (SSN) is being used at your company. If this happens to your business, do not ignore the problem. Ignoring a report of a false SSN or identity can lead to an ICE investigation and Notice of Inspection. Failing to act makes the company look complicit. Begin by conducting an internal investigation to confirm whether any misuse of the victim’s SSN was an innocent error. If not, address the situation under the company policies addressing false information, dishonesty, or fraud, allowing you remedial measures where termination is warranted. Submit updated W-2c and W-3c forms for every year the employee’s wages were reported under the victim’s SSN. Additionally, notify and correct the records with both the Social Security Administration and the state workforce agency as the issue may have originated if the victim was applying for state benefits.

If ICE determines that a company will be inspected, they will provide it with a “Notice of Inspection” (NOI), an official notification that it will audit your Form I-9 Records. Employers should focus and prepare for I-9 audits over workplace raids. While the Trump administration has touted that they would conduct more workplace raids, historically, they’ve been conducted a few times a year compared to thousands of I-9 audits. I-9 audits focus on penalizing paperwork and hiring violations. Don’t let this approach fool you into complacency. The results of an I-9 audit can result in hefty fines.

Handling ICE Enforcement

If you receive an NOI, it is important to know your rights as a business owner. You will have at least three days to gather your I-9 forms. During this process, you have the right to legal counsel, which will communicate with ICE on your behalf. Remember to stay calm and professional, let ICE know you will cooperate, and create a log of all the documents you provide. Additionally, provide only the information you are asked for in the NOI — don’t volunteer extra records or allow agents to wander the facility beyond the scope of the NOI.

After an audit, you may receive a “Notice of Suspect Documents” identifying employees who appear unauthorized. If you receive this, allow the employee to correct it. You may also receive a “Notice of Technical Failures” listing paperwork mistakes. You will be given 10 days to correct those mistakes. Lastly, you may receive a “Notice of Intent to Fine” for substantial mistakes. What makes an error substantial instead of technical is when the employer should have recognized an obvious mistake on the Form I-9 (see below Hall of Shame for examples).

Avoiding I-9 Audit Fines

Employers should create an I-9 compliance checklist to avoid fines or audits. The checklist should include the following steps:

• Establish and implement a written policy and procedure for maintaining records.
• Apply the policy consistently to all employees to avoid claims of discrimination.
• Hire an experienced law firm to conduct a compliance evaluation.
• Schedule a company-wide I-9 mock audit to ensure compliance.

When reviewing I-9s, you want to reject any I-9s that contain these mistakes contained in the “Hall of Shame” to avoid hefty fines or criminal charges for knowingly harboring unauthorized immigrants:

• SSNs that start with 9, 666, or 000 and have a signature line
• Any misspelling should flag a document as fraudulent
• Photos must be a headshot of only one person
• Matricula Consular Cards are not an approved document

Identity Confessions

Finally, employers should be aware of a common difficult position they may encounter when employees provide new work authorization and admit that the previous document was not genuine. If you encounter this issue, take appropriate measures based on your company policies (we advise against a one-strike policy in favor of one that empowers management to evaluate each scenario). Next, prepare and complete a new Form I-9 as if it were a new hire, using the original hire date from the previous I-9, and retain the old form with the new form. Lastly, document the reason for the newly confessed identity for your records, and notify the employee that they are responsible for complying with applicable tax regulations.

Compliance toolkits addressing I-9 Compliance, Innocent Bystander Victims, and New Confessed Identity Scenarios are available request them at info@montyramirezlaw.com