It is important to note that the likely increased ICE enforcement actions are taking place against the backdrop of a political climate in which a significant portion of the American public supports tougher enforcement of the nation’s immigration laws.
Since taking office, President Donald Trump has introduced sweeping changes to immigration enforcement through a series of executive orders aimed at expanding both the legal authorities used to enforce immigration laws and the infrastructure needed to accomplish deportations. Although much of the attention has been on how the new immigration policies impact enforcement against individuals, employers should also understand how the new policies may impact the approach that U.S. Immigration and Customs Enforcement (ICE) takes to enforce laws prohibiting the unlawful employment of unauthorized immigrants.
Immigration Enforcement on Businesses
President Trump’s Border Czar, Tom Homan, has advocated for workplace enforcement that targets unauthorized workers and the businesses that hire them. Employers should be prepared for increased I-9 audits and ICE enforcement actions.
I-9 Audits
Under the Immigration and Nationality Act, 8 U.S.C. § 1324a(b), employers must verify the identity and employment eligibility of all individuals hired in the United States. Federal regulations designate Form I-9, Employment Eligibility Verification as the tool for such employer verification measures. An I-9 audit is when ICE conducts an inspection of a company’s I-9s for compliance.
ICE initiates an audit with a Notice of Inspection, which requests the production of all I-9s and supporting documentation for inspection. This demand will normally require production within three days. The ICE auditor then inspects the documentation for any violations, such as incomplete, incorrect, or missing forms.
During the first Trump administration, ICE set a goal of conducting 12,000 to 15,000 I-9 audits in 2020, compared to an average of 3,000 to 3,500 audits averaged per year during the Bush and Obama administrations. It is anticipated that during the second Trump administration, ICE will take an equally or even more aggressive approach to I-9 audits than in Trump’s first term. The number of employers who have enrolled in E-Verify (the online system that compares information entered by an employer from an employee’s Form I-9 to records available to the U.S. Department of Homeland Security and the Social Security Administration to confirm employment eligibility) has increased from roughly 920,000 in 2020 to over 1.3 million in 2024. E-Verify enrollment is currently required for most federal contractors and also required in some states, and efforts to expand mandatory E-Verify enrollment as well as greater interest of employers in voluntary enrollment are also expected.
ICE Enforcement
It is also expected that ICE will engage in more enforcement activities at workplaces by conducting raids that target businesses suspected of hiring unauthorized workers. An ICE raid typically occurs after the agency receives information regarding the whereabouts of individuals with removal orders or criminal records or information about an employer’s unlawful immigration acts and consists of numerous ICE agents appearing at a worksite, without warning and typically pursuant to a warrant. For example, during the first Trump administration, in April 2018, ICE agents conducted what was the largest workplace raid in over a decade, arresting nearly 100 workers at a meat-processing plant in Tennessee. The investigation was triggered when the employer’s bank noted large cash withdrawals occurring weekly, prompting an ICE investigation that relied on confidential informants. Similar investigations are likely to occur under the current Trump administration.
Current Political Climate
It is important to note that the likely increased ICE enforcement actions are taking place against the backdrop of a political climate in which a significant portion of the American public supports tougher enforcement of the nation’s immigration laws. Thus, there is a greater chance of immigration enforcement being triggered by tips and complaints by competitors, disgruntled employees, or unhappy neighbors. Federal prosecutors will be more likely to prioritize enforcement of immigration laws, including violations in the workplace.
Civil and Criminal Liability
In light of the Trump administration’s renewed focus on immigration enforcement, employers should be aware of the risks of employing unauthorized immigrants. Audits and raids by ICE disrupt operations, and the illegal hiring of workers also exposes companies to both civil and criminal penalties. For example, failure to comply with I-9 requirements can have severe consequences for employers. Under 8 C.F.R. § 274a.10(b), employers who fail to properly complete and retain I-9 documentation can face civil penalties ranging from $281 to $2,789 for each paperwork violation. Further, employers that hire unauthorized immigrants to work in the United States could face civil fines of $698 to $5,579 per hiring violation for a first offense.
In addition to civil fines, businesses risk potential federal criminal penalties for unlawfully hiring unauthorized immigrants. Title 8, United States Code, Section 1324 describes several crimes involving assisting and transporting foreign nationals into the United States illegally, encouraging them to enter without proper authorization, or harboring foreign nationals who have entered without proper authorization. Specific to employers, under Section 1324(a)(3)(A), it is a crime for an employer to knowingly hire 10 or more unauthorized workers within 12 months. A violation of this statute is a felony, and each offense is punishable with a maximum of five years in prison, as well as significant fines for businesses.
About Duane Morris
Duane Morris attorneys are providing cross-practice guidance and in-depth insights into a variety of business and legal concerns emerging from changes in the political landscape and the executive branch, including executive actions and policy changes that will have significant implications across industries and job functions. On February 19, Duane Morris presented a Zoom event, Proactive Employer Strategies: Preparing for ICE Raids in the Workplace, which is now available as a video replay. More resources and details on future Zoom events can be found on the Presidential Administration Executive Orders and Agenda area of DuaneMorris.com.
For More Information
If you have any questions about this Alert, please contact any of the attorneys in our White-Collar Criminal Defense, Corporate Investigations and Regulatory Compliance Group, any of the attorneys in our Immigration Law Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.