I-9 and E-Verify Compliance Under the New Administration
- mmonroe7
- Aug 6
- 5 min read
Written by Stephanie Burford, PHR, HR Manager at Advisor HR
Employment authorization has been a major focus since the new administration has come onboard. Fines, penalties, audits, and ICE raids are continuing to happen on a daily basis. Its important employers understand what to expect from the current administration and how to prepare.
Defined by the USCIS, employers must complete Form I-9 each time an employer hires a person to perform labor or services in the United States in return for wages or other remuneration. The requirement to complete Form I-9 applies to new employees hired in the United States after Nov. 6, 1986, as well as new employees hired in the Commonwealth of the Northern Mariana Islands (CNMI) on or after Nov. 28, 2009. Additionally, E-Verify is mandatory in certain states. Failure to comply with these federal and state requirements can result in significant penalties if audited by Immigration and Customs Enforcement (ICE).
Employers may be selected for an I-9 audit for various reasons, including:
· Complaints from current or former employees
· Random selection
· Industry targeting (e.g., agriculture, construction, hospitality)
· A history of non-compliance
· High-profile or public incidents
To reduce risk, employers should consider conducting internal I-9 audits to confirm that all forms are completed accurately and required documents are properly maintained.
If ICE initiates an audit, employers will receive a Notice of Inspection (NOI) requiring them to produce I-9 forms and supporting records (such as work authorization documents) within three business days. That is a short turnaround, so being prepared is essential.
According to a training provided by TrainHRLearning on Complying with the New I-9 and E-Verify Regulations Under the Trump Administration, employers should be aware that ICE worksite enforcement actions, including unannounced raids, may occur without prior notice. During these visits, ICE agents may question, detain, arrest, or issue warnings related to specific employees.
To be prepared, employers should consider the following steps:
· Request to see a warrant before allowing agents access beyond public areas.
· Understand and exercise your right to remain silent
· Document the names and badge numbers of all agents
· Immediately contact your legal counsel
· Designate a staff member to accompany the agents throughout the facility.
· Provide basic cooperation, such as directing agents to requested documents, but avoid making statements or assumptions during the interaction.
Being prepared and training key staff on these procedures can help protect your business and employees during unexpected enforcement actions.
Employers should not only be prepared for potential I-9 audits and ICE raids, but also remain aware that E-Verify is mandatory in certain states. Employers who are required to use E-Verify or who utilize remote verification methods may also be subject to audits to ensure compliance with these specific requirements.
To review your state requirements, check here https://workforce.equifax.com/e-verify-state-requirements.
To conduct a self-audit, employers should follow best practices outlined in the official guidance from ICE, available at: https://www.ice.gov/doclib/guidance/i9Guidance.pdf. This resource also includes helpful FAQs and additional information to support compliance.
1. Communication
According to Ice.gov, when preparing a self-audit, employers should consider the purpose of the scope of the audit and how it will communicate information to employees, such as the reasons for the internal audit and what employees can expect from the process. They go on to say that employer’s should develop a transparent process for interacting with employees during any internal audit.
2. Correcting Errors – use different color ink.
To correct errors or omissions in Section 1, the employee must do this by:
a. draw a line through the incorrect information;
b. Enter the correct or omitted information;
c. Initial and date the correction or omitted information.
An employer may only correct errors made in Section 2 or Section 3 of the Form I-9. The best way to correct the form is to:
· Draw a line through the incorrect information;
· Enter the correct or omitted information; and
· Initial and date the correction or omitted information.
An employer should not conceal any changes made on the Form I-9—for example, by erasing text or using correction fluid, nor should the employer backdate the Form I-9.
An employer that made multiple errors in Section 2 or 3 of the form may redo the section(s) containing the errors on a new Form I-9, and attach it to the previously completed form. An employer should attach an explanation of the changes made to an existing Form I-9 or the reason a new Form I-9 was completed, and sign and date the explanation.
3.Terminated Employees - If the employee is no longer working for the employer, the employer should attach to the existing form a signed and dated statement identifying the error or omission and explain why corrections could not be made (e.g., because the employee no longer works for the employer).
4. Documenting Errors or Omissions – According to the M-274 handbook for any errors or omissions, employers should attach a written explanation of why information was missing or needed correcting. If the employee’s employment has ended, a signed and dated statement identifying the error or omission attach to the existing form and explain why corrections could not be made, for example, the employee no longer works for you.
If the employee is remotely located, employers should develop the appropriate business process to allow them to correct or enter missing information.
5. E-Verify - Unless an employer is a federal contractor with a federal contract that contains an E-Verify clause, it generally cannot use E-Verify for existing employees. Thus, where the employer was enrolled in E-Verify but did not use the system as a business practice, it should not go back and create cases for any employees hired during the time there was deliberate non-use of E-Verify. However, if an employer learns that it inadvertently failed to create a case in E-Verify, the employer should bring itself into compliance immediately by creating a case for the employee. An employer should consult U.S. Citizenship and Immigration Services for further information at 1- 888-464-4218, or by e-mail at E-Verify@dhs.gov.
By being proactive and ensuring that I-9 forms are completed accurately while staying current with E-Verify requirements, and preparing for potential audits or enforcement actions, employers can reduce their risk and maintain compliance.
Advisor HR offers a streamlined platform that has a built in Form I-9 and communication to E-Verify through the electronic onboarding process. Interested in learning more? Or have questions? Reach out today!
Resources:
· TrainHRLearning on Complying with the New I-9 and E-Verify Regulations Under the Trump Administration