Quick Takeaways

• Proposal would create office staffed by workers trained to perform initial I-9 audits and screen for technical, substantive, or even criminal violations. 

• New office, possibly of independent contractors, would bring serious violations to ICE’s attention, thereby freeing ICE and HSI to focus on locating, arresting, and removing undocumented immigrants. 

• Unclear if, when, and/or in what form the proposal will come into effect, but the move is consistent with general increase in immigration-related activity as of late. 

• Another reason for U.S. employers to get their I-9s in order.  

In a recent interview with the Center for Immigration Studies, President Trump’s Border Czar, Tom Homan, discussed the possibility of increasing the volume I-9 audits. In addition to championing the Trump Administration’s recent uptick in immigration-related arrests and increased removals – and to allow the government to maintain its record-setting figures – Mr. Homan’s proposal would achieve this goal by shifting I-9 audits away from Immigration and Customs Enforcement’s (“ICE”) Homeland Security Investigations (“HSI”) to a to-be-created office comprised of independent contractors trained to review employment records and spot I-9 violations. 

According to Mr. Homan, worksite enforcement actions serve several of the Administration’s interests. Mr. Homan highlighted how these actions allow the government to remove undocumented workers who lack employment authorization in the United States and protect U.S. companies competing against firms winning contracts by employing authorized workers, while also punishing criminal employers for unlawful practices that hurt foreign workers (e.g., human trafficking, peonage) and U.S. workers (e.g., fewer jobs, lower pay) alike. For these reasons, Mr. Homan affirmed Trump 2.0.’s dedication to expanding worksite enforcement actions. However, ramping-up worksite enforcement actions risks directing valuable resources – ICE and HSI officers – to engage in more administrative investigations, rather than continuing their efforts to locate, arrest, and remove unauthorized individuals across the United States. 

Mr. Homan’s solution to this dilemma, in his own words (though borrowing the idea from someone else in his department), is to:

Create a warehouse, hire a bunch of smart contractors that can batch an I-9 inspection, then once they see a lead, whether it’s criminal, administrative, you push that lead to HIS…And we’ll get a lot more that way…I just think if it doesn’t take a badge and gun to do the work, have a contractor do it. We got plenty of money. Have a contractor do it and that releases the badge and gun to do more badge and gun things.”

Mr. Homan could not provide a timetable concerning this proposed initiative’s development, finalization, and/or roll-out, simply advising that the plan is in the works. That being said, the potential for expanded I-9 audits and other worksite enforcement actions should be taken seriously and serve as a reminder for U.S. employers to:

• Review, establish, and/or refresh I-9, E-Verify, and other compliance policies; 
• Follow said policies since an employer’s good faith efforts to adhere to compliance requirements may mitigate fines for errors found; and, in so doing 
• Perform regular I-9 audits internally and/or with the assistance of outside counsel.

Green & Spiegel is well-equipped to assist clients with each of these processes, all of which may reduce or otherwise mitigate the civil and/or criminal penalties that stem from I-9 violations. Therefore, please do not hesitate to contact our office if you would like to audit your I-9 records, have been subject to an I-9 audit, or if you simply have questions about the I-9 and compliance processes more generally.