Election 2024: What employers need to know about worksite compliance during the second Trump administration

Donald Trump was declared the winner of the 2024 Presidential Election in early November.

During his first term in the White House, Trump’s immigration policies impacted all aspects of legal immigration including restrictions for entry into the U.S.; increased scrutiny on all classifications of employment-based, family-based, and humanitarian-based applications; and the implementation of additional requirements for certain visa types. Additionally, these initiatives also led to an uptick in I-9 inspections and other worksite audits.

While it is not yet clear what specific immigration policies Trump will pursue once he takes office on Jan. 20, 2025, his campaign messaging outlined his intent to take similar positions in his second term.

We spoke with Garfinkel Immigration Law Firm Senior Associate Attorney Nam Douglass about how employers can prepare for the potential increase in Form I-9 inspections and other worksite compliance-related enforcement policies that may be implemented during the second Trump term.

Douglass and Garfinkel Immigration Partner William Hummel will be hosting an open webinar entitled “Ready for Round Two? Navigating Immigration in a Second Trump Term,” on Dec. 17 at 1 p.m. The webinar will be geared towards both employers and foreign nationals, with the opportunity to ask questions. Find out more about the webinar and register here.

What did employers generally experience, in terms of worksite compliance, during the first Trump term?

From a worksite and employer compliance perspective, what we saw under the last Trump administration was additional scrutiny on employers with regards to document verification related to the work authorization of foreign nationals.

What that looked like was more I-9 audits, and more worksite compliance investigations, both criminal and administrative, by Homeland Security Investigations (HSI), the investigative arm of the Department of Homeland Security that handles these matters.

How do you recommend employers prepare for these investigations, if one was to occur to them?

Generally, how these investigations start is that HSI will come to your place of business and serve a Notice of Inspection (NOI) indicating that the employer has to produce the requested I-9 forms and other documentation within a specific timeline. Businesses should have specific policies in place that designates an authorized representative to speak with a USCIS or Homeland Security Investigation officer or grant permission to enter nonpublic areas of your business if they arrive at your workplace.

Officers issuing a NOI are not entitled to enter the nonpublic areas of your business, unless they have a judicial warrant. So again, businesses should establish who is the first in line to speak on behalf of the company, and what information they are authorized to share. You’ll want to be sure that everyone is clear, and that people understand what their responsibilities are. In the event that your company is issued an NOI, we recommend that you contact immigration counsel immediately to assist with the response.

Is there anything employers can do proactively in preparation for the change in administration?

In terms of how you can prepare your business, you can perform an internal spot audit, or you can seek outside assistance from experienced immigration counsel to do a review of your I-9 forms and supporting documentation. This review ensures you are in compliance, that your Form I-9s are being properly completed and the documentation is retained separately, not in the employee folders.

This audit will also help ensure that your internal hiring and onboarding processes are consistent across all of your employees, in compliance with equal opportunity employment regulations, and spot any areas where changes may be required. An internal review will also help you understand the information you are required to provide in the event of an audit.

On a similar note, what should employers know about ‘no match letters’ and the Trump administration?

Under the last administration, we also saw a return to the issuance of Social Security “no match letters.” This arises when there is an inconsistency between a person’s name and the social security number in the Social Security Administrations records. This is often flagged during the submission of an employee’s W-2s.

Employers should ensure that there is a specific person responsible for addressing these notices and understands their obligations. This includes what steps they’re required to take in notifying the impacted employees, responding to the Social Security Administration, and the associated risks and implications of each of those steps.

Is there anything employers should know about E-Verify related to this topic?

While E-Verify is not a national requirement, it is a requirement in a lot of states based on the size of your company. Using E-Verify does not necessarily mean that you wouldn’t face any liability in the event of an I-9 audit or the finding of technical insufficiencies, but it does represent a presumption of good faith that you’re trying to comply with all the regulations.

So, employers may want to consider adding E-Verify if they are not currently doing so. Employers can contact experienced immigration counsel to begin to understand the process and what that requires, and having someone on staff get trained to use it.

Were there any industries, specifically, that saw increases in these worksite enforcement actions, or was it everyone across the board?

There were two buckets during the first Trump administration. What we saw was a combination of I-9 audits as a starting point for significant criminal investigations in larger companies. Many of these bigger companies were in the poultry and food manufacturing industries.

In those instances, usually, the government is investigating a pattern of actions by the company to either not properly document who their employees are, or in committing other types of wage and labor violations. In many instances, these result in the issues of search warrants carried out through ICE raids on the facility under investigation.

On the other hand, under the last Trump administration there was a mandate for local Homeland Security Investigations offices to do more investigations. To help make that happen, officers often used the information reported by people making complaints to initiate an investigation. So, in that case, it could run across the spectrum of employer size and industry.

Do you have any advice for what smaller companies should do now before Trump takes off again?

For everyone, but especially for smaller companies, I think ensuring that you have documented practices for your HR that you are following is a good faith effort that shows that you are being intentional and consistent in your hiring practices. If you’re too small to have in-house HR, there are tons of companies who can perform fractional HR services to help you outline that process. You can also meet with experienced immigration counsel to discuss best practices and receive other information.

What are the potential consequences if these investigations turn up issues and/or errors?

In terms of I-9 compliance, each error that’s found on every single form is considered a technical error. And so, there’s a series of fines that are issued based on the number of technical errors, whether it’s a first offense or subsequent offense, and the seriousness of those errors. A company could potentially face 1000s of dollars in fines depending on the size of their workforce and how many errors they have. For second or third offenders, obviously the fines go up, and at that point, there’s the potential for a criminal investigation, if the investigators think you’re continuing to violate the law.

If you were an employer that was nervous about the thoroughness of their I-9 process, or they think they may not be in compliance, what would you recommend to them?

If that company doesn’t feel like they have the capacity to review their I-9 processes on their own, we would recommend speaking with an HR professional or reaching out to immigration counsel to do a spot audit, and/or review their current policies and practices to identify any potential issues.

In the event that you were to be investigated, the fact that you had made the effort to address and correct issues would be considered in a final determination.

Is there anything else you think employers should know if they were to be the subject of an investigation by Homeland Security Investigations?

The first thing we always encourage is to ask for additional time to respond so the company has the opportunity to properly gather all of the necessary information, and most importantly reach out for assistance from experienced immigration counsel.

It’s important to provide an accurate representation of only the information requested without divulging information the investigators are not entitled to see. Employers should also not make any rash decisions with regards to hiring, or letting employees go, because that, in and of itself, could violate other employment laws.