Staying Compliant: HR Strategies for Navigating I-9 Audits and Immigration Enforcement

As the current U.S. presidential administration intensifies its focus on immigration enforcement, HR and compliance professionals are facing renewed scrutiny of employment practices—especially regarding I-9 documentation and unannounced visits from Immigration and Customs Enforcement (ICE). Understanding the legal landscape and preparing your organization can help mitigate risk and ensure compliance.

The Role of ICE in Workplace Immigration Enforcement

ICE is the primary federal agency enforcing immigration laws in the workplace. Two major divisions within ICE handle these areas:

• Homeland Security Investigations (HSI):Manages I-9 audits and broader investigations involving worksite compliance and criminal activity.
• Enforcement and Removal Operations (ERO):Focuses on identifying and removing individuals who are unlawfully present in the U.S.

Most enforcement actions begin with an I-9 audit. ICE may issue a Notice of Inspection, giving the employer three business days to produce all I-9 forms and related documentation. While employers must comply, they may request additional time to gather the required documents.

Handling I-9 Discrepancies and Enforcement Actions

If ICE identifies errors or inconsistencies in I-9 documentation, the employer may receive a Notice of Suspect Documents, indicating that certain employees may lack proper work authorization. These employees may need to be terminated if they cannot provide valid documentation. ICE may also impose monetary penalties for violations, which can be appealed.

Additionally, ICE has shown a growing interest in conducting worksite raids, often targeting individuals with prior criminal convictions. HR departments should be aware:

• Employers are not required to cooperatewith civil administrative warrants.
• In cases involving criminal warrants, cooperation is legally mandated.
• Non-compliance with ICE may lead to further investigations or penalties, including a full-scale audit.

Using Notaries or Authorized Representatives for I-9 Completion

For businesses with remote workers or multiple locations, hiring notaries or authorized representatives to verify Section 2 of Form I-9 can be a practical solution. U.S. Citizenship and Immigration Services (USCIS) allows employers to appoint an authorized representative to complete the I-9 on their behalf—even if that individual is not a notary public.

However, employers should keep in mind:

• Notaries are not acting in their official notarial capacitywhen verifying I-9 documents (unless state law requires it). Their role is simply to serve as an authorized representative.
• It’s essential to train notaries or authorized repson proper I-9 procedures, including document review and form completion.
• Employers remain fully liable for errors, even if an authorized representative completes the form incorrectly.

Having clear documentation and training protocols in place helps maintain compliance, especially as remote hiring continues to expand.

Proactive Steps for HR and Compliance Teams

To prepare for potential audits or enforcement visits, HR should implement a clear, company-wide protocol that includes:

• Assigning a point of contactto interface with ICE or legal authorities.
• Consulting legal counselimmediately upon receipt of any government notice.
• Training staff and authorized representativeson how to respond to document requests and properly complete I-9s.
• Regular internal I-9 auditsto ensure accuracy and timely updates.

Being proactive not only reduces risk but also fosters trust among employees during times of uncertainty.

Managing Employee Concerns

Even employees who are legally authorized to work in the U.S. may feel uneasy about increased enforcement. HR can help ease anxiety by:

• Encouraging timely renewalsof work authorization documents.
• Providing clear communicationabout employee rights and the company’s compliance procedures.
• Creating safe channelsfor employees to ask questions or report concerns.

A well-informed workforce is more resilient and less likely to fall out of compliance due to avoidable documentation issues.

Avoiding Discrimination During the Hiring Process

Enforcement isn’t just about documents—it’s also about avoiding discriminatory practices. The Department of Justice’s Immigrant and Employee Rights (IER) section actively investigates employers who violate anti-discrimination laws, even unintentionally.

Key reminders for HR:

• Do not ask about immigration statusduring the interview process.
• The only permitted pre-employment question is whether the applicant will require visa sponsorship now or in the future.
• Immigration status is revealed only during the completion of the Form I-9, post job-offer.

Employers who mishandle these steps risk investigations, fines, and significant reputational damage.