Creating a Paper Trail: Immigration Compliance
By MEREDITH J. MARONEY
It’s no secret that the Trump Administration is prioritizing immigration compliance. In fact, President Trump’s Border Czar, Tom Homan, recently appeared on The Megyn Kelly Show and clearly stated that his priorities for immigration compliance included worksite enforcement. Next Deportation Actions, and RFK’s Nomination Battle Ahead, w/ Tom Homan, Halperin, and Turrentine, The Megyn Kelly Show (Jan. 28, 2025), https://www.youtube.com/watch?v=Fb7W JNGRFcA. Mr. Homan elaborated that worksite enforcement includes Form I-9 and E-Verify enforcement as well as arrests of undocumented immigrants at worksites. Id. Therefore, employers are on notice that immigration compliance at the workplace is a priority for the Trump Administration and should prepare accordingly.
Under the Immigration Reform & Control Act (“IRCA”) of 1986, which is an amendment to the Immigration and Nationality Act (“INA”), all U.S. employers must verify the identity and employment authorization of all employees hired after November 6, 1986. Employers should do the following to meet the law’s requirements.
Use the current version of Form I-9. On August 1, 2023, the U.S. Citizenship and Immigration Services released the newest version of Form I-9 for employers to use. There are two versions of the newest Form I-9: one expires July 31, 2026, and the other expires May 31, 2027. Employers who currently use the Form I-9 that expires on July 31, 2026, should be ready to use the Form I-9 that expires on May 31, 2027, by July 31, 2026. While failing to use the current version of Form I-9 may seem like a smaller violation compared to knowingly employing an undocumented immigrant or failing to complete Form I-9 altogether, it is still a technical violation of federal law and could subject employers to monetary penalties. The new Form I-9 has several changes from its previous version. These changes include (1) condensing Sections 1 and 2 to one page; (2) changing the “Form I-9 Supplement, Section 1 Preparer and/or Translator Certification” to “Supplement A, Preparer and/or Translator Certification for Section 1;” and (3) changing “Section 3. Reverification and Rehires” to “Supplement B, Reverification and Rehire (formerly Section 3).”
Complete Forms I-9 timely. Employees must complete Section 1 no later than the first day of employment but not before accepting a job offer. If a preparer or translator helped the employee complete Section 1, the preparer or translator must complete the Preparer and/or Translator Certification (Supplement A) on page three of the current Form I-9. Employers must complete Section 2 within three business days after the employee’s first day of employment. For Section 2, an employee may present either (1) one document from List A; or (2) a combination of one document from List B and one document from List C. Employers should make sure that the document(s) that each employee provides is unexpired and that the employee’s name on Form I-9 matches the name on the document(s). While employers must verify the documents that employees provide, employers do not have to be document experts. If the documents appear to be genuine on their face and belong to the employee, the employer has likely complied with the IRCA. If the documents do not appear to be genuine, employers should provide the employee with a reasonable amount of time to produce a valid document.
Employers who are enrolled in E-Verify may remotely examine documents for remote employees, hybrid workers, and onsite workers. But an E-Verify employer is not required to use remote verification. However, if it does, it must consistently be offered to all employees at a hiring site. Nevertheless, it is acceptable for
an employer to offer remote verification for remote hires only but conduct in-person inspections for all employees who work on site or in a hybrid capacity, if not done for a discriminatory purposes. And any employee may still insist that their documents be examined in person.
Employers must complete Supplement B if (1) an employee requires reverification; (2) an employee is rehired within three years of the date the original Form I-9 was completed; or (3) provides proof of a legal name change. For employees who require reverification, employers must complete the employment reverification no later than the date that the employee’s work authorization expires. Keep in mind that lawful permanent residents are not subject to reverification and that requiring them to re-verify their employment eligibility could be viewed as discriminatory under federal law. In order to timely re-verify employees, employers should develop a tracking system that provides a way to keep up with employees who are subject to reverification so that those employees are re-verified timely.
Maintain Forms I-9. Employers are required to maintain their employees’ Forms I-9 for either (1) three years from the date of hire; or (2) one year from the date of termination, whichever is later. 8 C.F.R. § 274a.2(b)(2)(i)(A) (2024). This includes Supplement A (if applicable) and Supplement B (if applicable). Employers should maintain Forms I-9 in a separate folder apart from their employees’ personnel files. Employers should decide whether they maintain the documents that the employees provide for identification in Section 2. Maintaining these documents on some, but not all, employees could be viewed as discriminatory. Some states, like Tennessee, require employers to maintain these documents.
What if an employer failed to use the current Form I-9 or complete Form I-9? In light of the Trump Administration’s focus on immigration compliance, employers should consider self-auditing their Forms I-9. During the audit, it is possible that employers may notice that an employee may not have used the current Form I-9 at the time of hire or that the Forms I-9 on some employees are incomplete. Under these circumstances, it is best practice for the employer and affected employee to complete a new Form I-9 using the current version of the Form I-9. Employers should also prepare a memorandum that explains why the employee and employer completed a new Form I-9 and attach it to the corrected Form I-9. Employers should attach the corrected Form I-9 and explanatory memorandum to the original Form I-9. In the event of an audit, this could mitigate the severity of the penalties that the employer incurs for failing to comply with federal immigration law.
Penalties for violating Form I-9 requirements. Under § 274A of INA, it is unlawful for a person or entity “to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien . . . with respect to such employment.” 8 U.S.C.S. § 1324a(a)(1)(A) (2024). Additionally, “[i]t is unlawful for a person or other entity, after hiring an alien for employment . . . to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8 U.S.C.S. § 1324a(a)(2) (2024). The Department of Homeland Security considers the following factors when determining the amount of the penalty for failure to properly complete a Form I-9: (1) the size of the business; (2) the employer’s good faith; (3) the seriousness of the violation; (4) whether the individual was an unauthorized noncitizen; and (5) the history of the employer’s previous violations, if any. 8 C.F.R. § 274a.10(b)(2) (2024).
An employer that is determined “to have knowingly hired, or to have knowingly recruited or referred for a fee, an unauthorized alien for employment in the United States or to have knowingly continued to employ an unauthorized alien in the United States” is subject to a cease and desist order and (1) a fine of $676-$5,404/undocumented individual for the first offense; (2) a fine of $5,404-$13,509/undocumented individual for the second offense; and (3) a fine of $8,106-$27,018/undocumented individual for a third or subsequent offense. 8 C.F.R. 274a.10 (2024); 88 Fed. Reg. 2175 (Jan. 13, 2023). An employer who fails to comply with the Form I-9 requirement is subject to a fine of $272-$2,701/violation. 8 C.F.R. § 274a.10(b)(2) (2024); 88 Fed. Reg. 2175 (Jan. 13, 2023).
Therefore, Employers should understand that immigration compliance is a priority for the Trump Administration and comply with the Form I-9 requirement to protect themselves and their employees.
Meredith J. Maroney
Associate Attorney
Rainey, Kizer, Reviere, & Bell PLC
