Trump Administration to Focus on Employment Compliance and Increased Worksite Enforcement

The Trump administration has announced that aggressive enforcement of immigration laws in the workplace will be a top priority in the coming months. Below is an overview of several anticipated changes and how employers can review their compliance efforts while preparing for potential enforcement actions.

I-9 Employment Eligibility Verification

• Employers are required to maintain complete and updated I-9 employment eligibility verification records for all employees. We encourage employers to proactively conduct internal audits of their I-9 records to ensure that all I-9 forms are properly completed, updated and signed. KM&M is available to perform audits of I-9 records, provide feedback on employment compliance, review I-9 practices, and conduct I-9 training sessions for HR and legal teams.
• HR and legal teams should be equipped to complete and maintain updated I-9 records, avoid employment discrimination based on citizenship or nationality, and react quickly and appropriately to a potential Immigration and Customs Enforcement (“ICE”) audit. We recommend implementing an internal process to handle an ICE inspection and to ensure that designated employees are equipped to provide documents, answer questions, and confer with counsel as needed in the event of an audit.
• Employers should be prepared to adjust their practices if the Trump administration revokes or scales back authorization for remote verification of I-9 forms.

Participation in E-Verify

• Certain employers, including federal contractors, STEM OPT employers, and employers in certain states, are required to participate in E-Verify, an online employment eligibility verification system. The Trump administration may expand this requirement nationwide to all employers. Employers should consider whether enrolling in E-Verify now would help them streamline their compliance efforts and mitigate the risk of penalties, even if they are not currently required to do so.

Worksite Investigations

• We expect to see a significant increase in worksite investigations (“raids”) during the second Trump administration. Raids may occur without warning and can result in the detention of allegedly unauthorized workers and the issuance of penalties, fines and/or other civil or criminal consequences to employers who are found to have knowingly employed unauthorized workers.
• Employers should be aware of the difference between administrative warrants, which do not allow ICE to enter a workplace without consent, and civil warrants signed by magistrates or judges – which do allow entry without consent.
• Employers should thoroughly document their good faith efforts to remain in compliance with immigration laws, including keeping records of any training, audits, and corrective actions the company may have taken.

Discrimination against US Citizens

• We anticipate increased enforcement of anti-discrimination laws when an employer’s practices could be perceived to discriminate against US workers. Employers should review job postings to remove language that could discriminate against workers based on their citizenship or nationality, provide training to HR and recruitment teams on their legal obligations, prepare internal policies for reviewing potential discrimination complaints, and document all efforts to comply with anti-discrimination and immigration laws.

Labor Condition Application (LCA) Obligations

• We expect to see more aggressive Department of Labor (DOL) enforcement of LCA obligations (which are required for employers sponsoring H-1B, H-1B1 and E-3 workers). In audits and investigations, the DOL confirms the accuracy and contents of the LCA (including the payment of a salary that meets or exceeds the prevailing wage) and compliance with recordkeeping obligations such as maintaining a Public Access File. The DOL may review payroll and timekeeping records, job descriptions, worksite locations, and other internal paperwork. Employers who are found to be in violation of these requirements can face significant fines and other penalties.

If you would like assistance drafting or reviewing your internal policies, performing an internal compliance audit, or otherwise preparing for increased worksite enforcement actions, please contact your KM&M attorney.