How does Trump’s Presidential victory impact I-9 and E-Verify Compliance?

Donald Trump’s surprising victory in the presidential race this week raises a host of questions about how he might influence a wide variety of employer-related issues such as health plans, taxes, and international trade (to name just a few). And while Mr. Trump has been extremely “light” on policy details throughout his campaign, he has expressed certain overarching themes with respect to one issue in particular: immigration reform.

decisions-i9-enforcementWait a minute, you say – what does immigration reform have to do with my business? As it turns out, quite a bit. Since the very beginning of his campaign, Mr. Trump made immigration (specifically “illegal” immigration) a key component of his “make America great again” message through headline-grabbing promises to build a wall, conduct extreme vetting of certain foreign national entrants, and reform the “legal” immigration process. While many of these initiatives are government-controlled, there remains one immigration area in particular where employers are still squarely in the cross hairs: Form I-9 compliance.

Under the Immigration and Reform and Control Act of 1986, all employers have been deputized (“congratulations!”) and tasked with ensuring they hire a legal workforce (through the ubiquitous and often painful Form I-9 verification process). While Mr. Trump has not specifically mentioned worksite enforcement in his stump speeches, he has repeated the often-quoted line about employment being the “magnet” which draws individuals to this country. Moreover, Mr. Trump has frequently sung the praises of E-Verify as being an effective system to address unauthorized employment.

What does this all mean for HR and hiring managers tasked with the Form I-9 and E-Verify processes? It’s obviously way too early to know for sure, but here are a few areas worth monitoring in the coming months.

Form I-9 Audits

During the campaign, Mr. Trump emphasized the need to enforce our existing immigration laws by beefing up the number of enforcement officers at the U.S. Immigration and Customs Enforcement (“ICE”) agency. Specifically, Mr. Trump noted that he would triple the number of ICE officers in order to increase the number of deportations (a campaign promise from the very beginning). While most of these officers would likely work in ICE’s Enforcement and Removal Operations (ERO) unit, Mr. Trump might increase funding for worksite inspections as well.

Since 2009, ICE has audited more than 10,000 employers and imposed more than $100 million in financial sanctions related to I-9 and worksite violations (a substantial increase over previous administrations). The strategy (as expressed by ICE) has been very clear – no employer is exempt from the Form I-9 requirement, and thus all should be held accountable if they fail to properly verify their new hire employees.

Mr. Trump may adopt a similar stance and increase (or at the very least maintain) ICE’s mission of creating a “culture of compliance” through meaningful civil penalties. And as reported in our blog back in August, the government recently increased the individual “per I-9” fines for substantive and uncorrected technical I-9 mistakes (to adjust for inflation) so that employers can now be dinged $216 to $2,126 per form (for violations occurring after November 2, 2015). These additional fees might even be used to help fund some of the other more aggressive immigration actions that Mr. Trump has been proposing.

E-Verify on the Rise

According to recent statistics, approximately 650,000 employers are enrolled in E-Verify, a “mostly” voluntary web-based system for confirming employment eligibility. While that number may seem like a lot, it’s still a drop in the bucket compared with the roughly 6 million employers in the United States. Under a Trump administration, however, the E-Verify bucket might fill-up real quick.

According to his position paper on immigration, Mr. Trump would mandate E-Verify across the United States in order to “protect jobs for American workers.” Congress has tried to implement mandatory E-Verify several times in the past (most notably in 2013 as part of a comprehensive immigration reform bill) but all such efforts have either stalled or failed altogether in the usual congressional gridlock.

While Mr. Trump will likely face similar opposition in 2017 and beyond, he may still be able to expand or strengthen the E-Verify program through unilateral executive actions. Many employers may recall the so-called “E-Verify FAR rule” which was promulgated after President George W. Bush issued an executive order mandating E-Verify for certain federal government contractors and subcontractors. The FAR rule is still very much in effect, and Mr. Trump could choose to expand upon it or even focus additional efforts to monitor compliance (which anecdotally has been somewhat less than stellar).

Foreign Workers

Last but certainly not least, employers should expect some potentially significant changes in relation to the employment of foreign born workers, particularly those undocumented individuals who had been granted a temporary reprieve by President Obama. Mr. Trump has vowed to overturn Mr. Obama’s Deferred Action for Childhood Arrival (DACA), a discretionary immigration benefit made available to certain undocumented young people who came to the U.S. as children.

Individuals granted DACA relief (of which there are approximately 700,000) are permitted to work in the U.S. after receiving an Employment Authorization Document (EAD). If Mr. Trump discards the DACA program, these individuals will be unable to work past their current EAD expirations (or even earlier perhaps), an event which may come to light during the I-9 reverification process. Even more concerning though is how employers will deal with these situations – particularly when they are forced to terminate a valued employee.

In addition to the DACA dilemma, employers may also face other unique immigration challenges from new policies or initiatives promised by Mr. Trump. These include restrictions relating to the H-1B visa program, more thorough vetting and screening of nonimmigrant visa applications abroad, and of course, the infamous pledge to deport most (or all) of the undocumented population in the U.S., many of whom are currently in the workforce.

Preparing for Change

As mentioned earlier, there are still many unknowns regarding how (exactly) Mr. Trump will implement the immigration enforcement initiatives outlined during his campaign. To a certain degree, I suspect it will be a matter of priorities and resources – will Mr. Trump make good on his immigration promises right away or focus instead on other areas such as health care or taxes? And even if he does turn his attention to immigration, will he be able to muster the undoubtedly significant resources needed to effect such change?

Regardless of the outcome, employers are well-advised to get their I-9 house in order now (long before we see any of these potential policy initiatives). Experts recommend reviewing current policies and practices with counsel; conducting a self-audit to fix mistakes and omissions; and adopting smart electronic I-9 processes which ensure compliance with ever-changing (and often unpredictable) government rules.  

Have a comment in regards to this blog or I-9 compliance in general? Please feel free to contact us for more information!

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John Fay is an immigration attorney and technologist with a deep applied knowledge of I-9 compliance and E-Verify rules and procedures. During his career, John has advised human resource managers and executives on a wide variety of corporate immigration compliance issues, including the implementation of electronic I-9 systems. In his current role, John serves as Vice President and General Counsel at the LawLogix division of Hyland Software, Inc., where he is responsible for overseeing product design and functionality while ensuring compliance with ever-changing government rules.