This article is part of an ongoing legal series designed to provide insight and practical guidance on current and emerging workplace compliance issues. These insights shared by lawyers are based on their interpretation of existing regulations and proposed changes, and intended for informational purposes, not to be regarded as legal advice.
Identifying and pursuing penalties against violators of immigration law is a top priority for the Trump administration. While most immigration enforcement changes impact non-citizens, businesses that employ noncitizens face increased risks, too. Generally, learning about how immigration status relates to the right to work, ensuring I-9 compliance, and keeping extensive and organized records are some of the most effective steps employers can proactively take to reduce those risks.
A DOJ memo issued on January 21, 2025, establishes the tone of the new Trump administration immigration policies, including that:
While the legal enforceability of some of these edicts is unclear, they form the backbone of the Trump administration’s focus on immigration enforcement.
For business owners, the resulting increases in immigration enforcement will likely result in:
By acting before issues arise, you can reduce the risk that your business will face significant operational disruption.
Whenever an employer hires an employee in the US, they must complete Form I-9, Employment Eligibility Verification, and the employee must provide identification proving their authorization to work in the US.
Employers are required to:
Employers do not have to file I-9s with the government unless requested in an I-9 audit.
The government may target businesses for I-9 audits based on:
During audits, the government requests extensive documentation, requiring businesses to devote a significant effort to responding.
Civil I-9 violations (violations that are not crimes) that an employer may commit include:
Businesses may face criminal liability for engaging in a pattern of hiring undocumented workers or those otherwise not authorized to work in the US.
Employers who fail to follow the I-9 requirements may be subject to I-9 penalties, which include:
The amount of penalties varies by the type and extent of violations.
With the administration’s strict approach to immigration enforcement, many business owners are looking to reduce the chances they will get caught in the crossfire. To avoid business disruptions, employers should:
If you have questions or concerns, seek the advice of an attorney and do not help employees cover up a lack of work authorization.
Unless well-versed in immigration law, business owners often do not know what to look for to determine whether someone is authorized to work in the US. Notably, you cannot knowingly hire someone who lacks work authorization, but you also cannot discriminate against someone based on immigration status. Along with learning to identify valid employment documents, you may want to speak to an immigration attorney if you have questions about the intersection of those requirements.
US citizens have the right to work based on their citizenship, which they may prove using a:
Green cards also automatically grant work authorization.
Temporary work visas authorize work in the US for specific purposes. Noncitizens on temporary work visas can generally change employers but can typically only accept work of the same general type as their initial employment.
An employment authorization document (EAD) also proves that a noncitizen has work authorization. Noncitizens often prove their right to work using an EAD, including those with:
Notably, except for DACA recipients, applying to renew before the current EAD expires generally extends the noncitizen’s employment authorization for 540 days while USCIS considers the application. The right to continue using an expired EAD results from sluggish USCIS processing times. For many noncitizens, receiving a new EAD before their current EAD expires is impossible because you must apply for renewal within 180 days of the EAD’s expiration date, and USCIS is taking longer than 180 days, sometimes much longer, to process renewal applications. Noncitizens in this situation can prove they have the right to work by providing their EAD and a notice from USCIS confirming that they applied for renewal before their current EAD expired.
The best defense to an I-9 audit is a good offense: comprehensive and efficient compliance guided by a thorough policy. That policy should require that you:
ICE workplace raids can decimate businesses and communities. To address the potential of a workplace raid, create a contingency plan and ensure supervisors know it. Treat employees with respect and pay them a fair wage. Poor working conditions are, unfortunately, a frequent precursor to ICE raids, so treating employees well goes a long way, too.
The Trump administration is focusing on immigration enforcement, which will likely result in more frequent audits and ICE raids on businesses. Meticulous I-9 compliance and learning can help you reduce the risk that new policies will disrupt your operations.
Outsolve can help offer guidance for HR compliance related topics. Contact us today.
USCIS, Automatic Employment Authorization Document (EAD) Extension, link.
USCIS, Check Case Processing Times, link.
USCIS, Employment Authorization Document, link.
USCIS, I-9, Employment Eligibility Verification, link.
USCIS, N-600, Application for Certificate of Citizenship, link.
USCIS, Penalties, link.
USCIS, Temporary (Nonimmigrant) Workers, link
USCIS, I-765, Application for Employment Authorization, link.
Office of the Attorney General, Department Charging and Sentencing Policy, May 10, 2017, link
Office of the Attorney General, Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement, link.
U.S. News & World Report, These Are the Lawsuits Against Trump’s Executive Orders, link.
National Immigration Forum, The First 100 Days of the Second Trump Administration: Key Immigration-Related Actions and Developments, link.