Preparing the Workplace for Increased Enforcement Actions

Nicole S. Schram 01.22.25

Between 2017 and 2018, the number of worksite investigations by the U.S. Department of Homeland Security (DHS) rose from 1,691 to over 6,800. The incoming Trump administration has stated its intention to resume its crackdown on unauthorized workers, and employers can reasonably expect an increase in enforcement activity. Employers should prepare by proactively reviewing existing documentation, ensuring proper hiring procedures, and remaining nimble in anticipation of new policies. Below are some key issues to consider.

Increased Focus on Form I‑9 Compliance

• Form I‑9 Verification Training: Employers must verify the identity and employment eligibility of every employee using Form I‑9. By training hiring managers, employers can not only ensure the company retains the correct I‑9 information, but they can also avoid unlawful discrimination in hiring. Key tips: be sure to use the new Form I‑9 (expires 5/31/2027) for all new hires, collect the correct verification documents, and review this I‑9 Handbook for Employers when questions arise.
• Consider E‑Verify: E‑Verify is an electronic system used to confirm employment eligibility, and its use is currently voluntary for most private employers. However, the Department of Homeland Security (DHS) recently rolled out a new version called E‑Verify+, which combines the I‑9 and E‑Verify procedures in one digital process, and it may soon be required nationwide. While it does not provide a​“safe harbor” protecting employers from penalties, Immigration and Customs Enforcement (ICE) may consider an employer’s voluntary use of E‑Verify or E‑Verify+ as a good faith effort to verify employment authorization. Employers should assess the risks and benefits of enrolling in E‑Verify or E‑Verify+, which may streamline compliance and reduce the risk of penalties.
• Proactive Internal Audits: Employers should audit their Form I‑9 records to ensure accuracy and compliance before any scrutiny from U.S. government agencies. This includes checking for missing signatures, incomplete information, and expired documents. For help, see this Guidance for Employers Conducting Internal I‑9 Audits. Documenting good-faith efforts such as internal audits and trainings may help to mitigate risk and reduce penalties.
  • If you employ individuals with complex Form I‑9 records, consult with an attorney to assist with the self-audit. The audit results and any corrective actions will remain confidential and will likely be protected by attorney-client privilege.
• Government I‑9 Investigations: Agents from the U.S. Department of Labor (DoL), Department of Justice (DoJ) or DHS may request documents or perform an in-person inspection of an employer’s Form I‑9 records. To gain access to an employer’s private premises and I‑9 information, the agency must either: (a) deliver a Notice of Inspection in person or by certified mail at least three days before the inspection, or (b) present a subpoena or warrant signed by a court on the day of inspection. Employers may be required to provide copies and/​or provide access to electronically stored I‑9 information and documents.

Worksite Enforcement Actions

• Increased Raids: The second Trump administration is expected to renew focus on large-scale worksite enforcement actions (unannounced ​“raids”) targeting businesses suspected of employing undocumented workers and businesses whose employees have lodged employment-related complaints with state or federal agencies.
  • The Trump administration is actively encouraging employees to report all wage and safety-related complaints to authorities, and ICE may follow such claims with raids. Ensuring compliance with employment laws can help avoid an unwelcome visit from ICE.
• Warrants: ICE agents may not enter or search the non-public areas of a business unless: (1) someone present on the property consents to the entry and search, or (2) the agents present a warrant signed by a judge or magistrate. A valid warrant will include language that describes the areas that may be searched and any property or documents that may be seized. The warrant may be highly specific to a named individual and their employment records, or it may give agents broad power to enter employer premises, block exits, and interview employees to verify identity and employment authorization. Employers should have a designated representative to manage investigations, and they should not encourage or facilitate any employees’ exit during a raid.
  • Employees who meet an ICE agent at the door may respond, ​“I can’t give you permission to enter. Please wait here while I get my employer.” 
  • Employers may ask for a warrant and may deny an ICE agent’s entry into private spaces without a warrant signed by a judge or magistrate.
  • If a valid warrant is presented, Employers should promptly provide access as required by the language of the warrant, but they may refuse access to spaces not listed on the warrant.
• Employer and Employee Rights. Companies and employees can make better-informed decisions if they know their rights. Consider printing this ICE Worksite Raid brochure and these ​“Know Your Rights” handouts (available in multiple languages) and making them available to all employees.

Visa Compliance Audits

• USCIS Site Visits: For employers of certain foreign religious workers, H‑1B, L‑1, and EB‑5 employees, USCIS may conduct more frequent site visits (including visits to an employee’s home office) to verify the accuracy of information provided in work visa petitions. Employers should ensure that the employee’s work location, job duties, and wages align with the visa application. USCIS agents are not required to provide any advance notice, warrant, or subpoena to enter. Participation in the compliance review is voluntary, but we strongly encourage participation. Violations or refusal to participate in a compliance review can result in fines for employers and/​or denial of future visa petitions.
• DOL Audits: Businesses employing workers in H‑1B, H‑2A and H‑2B status should ensure they are complying with the wage and working condition requirements of their labor conditions application (LCA) and maintain a fully compliant LCA public access file.

Taking proactive measures to prepare for possible worksite enforcement will not only reduce the likelihood of fines, but may also give your employees significant peace of mind. The Immigration team and Labor & Employment team at Boardman Clark are available to help.