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by Matthew J. Roberts, J.D.; Associate General Counsel for Labor and Employment, CalChamber
California’s robust and complex employment regulatory environment often dominates the attention of the state’s employers; but it is often changes to the federal landscape that create compliance headaches for employers that must comply with both sets of laws. President-elect Donald Trump’s upcoming inauguration will bring a variety of expected changes in the composition of regulatory boards and agencies, such as the National Labor Relations Board and the Equal Employment Opportunity Commission.
Usually, such a transition brings with it a mystery as to what changes in rules and enforcement postures will take place — perhaps the most anticipated changes this term center on workforce immigration enforcement. While we don’t have a crystal ball, we do have President-elect Trump’s first term in office to take lessons from. With the incoming administration, employers should look to history and review potential compliance issues that may be on the horizon.
The Form I-9 is part of a mandatory process employers use to verify that a new hire is authorized to work in the United States by authenticating their identity and work authorization documents. To ensure that employers are following this process in accordance with the law, the Homeland Security Investigations (HSI) unit, within U.S. Immigration and Customs Enforcement (ICE), will usually issue employers an audit notice to review Form I-9 documentation.
As with the 2024 presidential election, a variety of immigration-related issues were top of mind when President-elect Trump first took office in 2017. One of the primary efforts to address these issues was enforcement of existing immigration laws to ensure only those authorized to work in the United States were employed. The principle means the first Trump administration used to accomplish this goal was Form I-9 audits.
During that administration, starting with Fiscal Year 2018, the HSI greatly increased its commitment to auditing employers and maintained that posture until it was interrupted by the COVID-19 pandemic, which began in March 2020 and remained through the rest of the administration.
In addition to audits, ICE may utilize more aggressive enforcement through raids, where the HSI will execute criminal warrants at a workplace to collect evidence and administratively arrest employees who are alleged to be working in the United States unlawfully. These raids can sometimes include criminally arresting employers. Raids are often conducted after the completion of an audit.
Based on the history of the first Trump administration, and the rhetoric of his 2024 campaign, employers should prepare for a more robust enforcement posture from ICE during a second administration.
I-9 audits are usually initiated by a Notice of Inspection (NOI) that informs employers that they will have three business days to collect and submit their I-9 forms and related documents to the entity that issued the NOI. NOIs are usually issued by ICE — through the HSI — but other federal agencies may issue them, such as the U.S. Department of Labor. Employers may not refuse to comply with this notice, and there is no judicial warrant or subpoena required for compliance. Once received, a NOI also triggers certain responsibilities for California employers.
Enacted in 2017, the California Immigration Worker Protection Act (IWPA) sought to impose rules on an employer’s conduct by:
The federal government challenged this law, and the most recent decision from the Ninth Circuit Court of Appeals allowed only enforcement of the I-9 inspection notice provision. The IWPA requires an employer that receives a NOI to post a notice to employees in the workplace within 72 hours of receipt. The posted notice must include:
The notice must be posted in the language normally used to communicate employment-related information, and copies must be provided to any collective bargaining representative. Copies of the NOI must be provided to any employee upon reasonable request.
The federal government will review the documents provided and issue a post-inspection notice that can take a variety of forms, such as a notice of compliance, various notices of potential issues and a notice of intent to fine for violations. Currently, fines for just I-9 paperwork violations can range from $281 to $2,789 per Form I-9, which can be substantial when applied across an entire workforce, if issues persist.
Once the inspection is complete, the IWPA requires California employers to provide within 72 hours the following notice to “affected employees.” Affected employees are those who are identified as potentially lacking work authorization or with other document deficiencies in the federal government post-inspection notice, usually called a Notice of Suspect Documents. Notice to affected employees must include:
Each post-inspection notice under the IWPA must relate only to the affected employee and must be hand-delivered at the workplace, if able, otherwise it must be delivered by mail and email, if available. This notice also must be delivered to the affected employee’s collective bargaining representative, if applicable.
While I-9 audits are serious matters, raids may result in much more severe consequences, including arrests for workers and/or employers. As noted above, raids are often triggered by the completion of I-9 audits but may also be conducted based on public tips or other information that lead the HSI to believe unlawful immigration practices or other crimes are occurring at the workplace.
Unlike audits, employers may require federal immigration law enforcement to produce a subpoena for records or a judicial warrant to enter any nonpublic area of the workplace. Employers may also choose to voluntarily cooperate with federal immigration law enforcement without a judicial warrant because the prohibition on voluntary cooperation under the IWPA is currently unenforceable. Whether an employer chooses to voluntarily cooperate with federal immigration law enforcement is a delicate decision that should be considered with legal counsel.
An employer’s best response to audits and raids is to ensure compliant practices prior to either occurring. The Form I-9 process is formulaic and technical, but following the rules is essential for employers in the event of an audit or raid. Some of the most common errors are outlined below.
Completing New Hire Paperwork
Completing the Form I-9 for all new hires is a requirement for all employers. Employers must always use the most recent version of the Form I-9 issued by the U.S. Citizenship and Immigration Services (USCIS), which is currently the August 1, 2023, edition. This edition will have an expiration date of either July 31, 2026, or May 31, 2027. Currently, employers may use either, but starting Aug. 1, 2026, employers should use the Form I-9 version with the 05/31/2027 expiration date.
On top of utilizing the correct form, employers must meet strict timing requirements. Multiple sections of the Form I-9: Section 1 must be completed by the new hire, and Section 2 must be completed by the employer. Section 1 must be completed on the first day of work, while Section 2 must be completed within three business days of the first day of work. If an employer is unable to meet these timing requirements, the employer may not allow the employee to work until the sections are completed.
When completing the Form I-9, employers must ensure that the employee receives a copy of the instructions to complete Section 1 and that they understand the documentation they are required to provide the employer. Once Section 1 is completed, employers must receive documentation from the employee that verifies their authority to work in the United States as well as their identity. The list of acceptable documents is attached with the Form I-9. An error that employers must avoid is requesting specific documents to complete Section 2. Under the law, the employee is allowed to choose which documents to provide, as long as they are sufficient and authentic.
Once provided with documentation, the employer physically examines the documentation to reasonably confirm its authenticity and that it reasonably relates to the person providing it. The law doesn’t require employers to be document authentication experts, but an employer must use reasonable judgment to confirm or reject the authenticity of the provided documents.
Another common violation on the part of employers is failure to properly retain the Form I-9 and related documents as required by law. Employers must retain the completed Form I-9 for the entirety of the employee’s employment plus either three years after the form’s completion or one year after the employee’s employment ends, whichever is longer. In general, there is no obligation to retain the documents submitted by the employee for Section 2. Whether an employer chooses to retain the documents or not, the employer must be consistent across all new hires by either retaining all the documents or retaining none.
Employers may retain documentation using either a paper or electronic system. Employers using an electronic system need to ensure that the system has reasonable controls for integrity, accuracy, reliability and security in addition to procedures to regularly evaluate these system requirements. It must also have an indexing system to identify and retrieve records and be able to produce legible copies. Due to the short duration employers have to prepare for I-9 inspections following an NOI, employers should keep this documentation separate from other personnel records regardless of the system they use.
Remote Verification
Due to the evolving nature of how and where work is performed, it has become more difficult in some cases to physically examine documents and complete the Form I-9. There are special considerations with remote employees that employers must consider to avoid violations.
In general, remote employment doesn’t absolve the employer from performing a physical examination of documents. If the employee is expected to work at a location away from a central worksite where Form I-9 verification is usually conducted, the employer may designate an authorized representative — managers, personnel officers, foremen or other agents, including notary publics — to physically inspect the documents and complete the form. Whomever the employer chooses, the employer is still liable for any violations. If an employer chooses to use a public notary in California, the law requires that they use a public notary who is also registered and bonded as an immigration consultant.
Remote verification without physical examination of documents is only available in limited circumstances when the employer is already enrolled in, and in “good standing” with, the federal E-Verify system. Good standing means the employer has enrolled in E-Verify for all of its hiring sites and complies with all E-Verify program requirements. To utilize this procedure, an employer must:
E-Verify is not a program that most California employers must utilize; however, it is a requirement for those who wish to use this remote document verification procedure.
Although not required, self-auditing Form I-9 documents may be a valuable process to avoid ongoing violations and liability. However, these audits are subject to anti-discrimination rules, and an employer should carefully prepare how it wants to audit its forms before doing so. An employer may audit all forms or a sampling of the forms, but in either case, the criteria chosen must be neutral, nondiscriminatory and avoid any appearance of targeting or retaliating against employees. ICE has prepared guidance for employers to follow if they choose to self-audit.
If an error on a Form I-9 is discovered, or if it is discovered that there are no Form I-9 records for an employee, the employer must correct the error, including requiring the completion of a new Form I-9. The USCIS provides both the I-9 Central and M-274 Employer Handbook for information on corrective action depending upon the type of error.
In addition to complying with federal Form I-9 rules, employers will need to be aware of other laws or potential changes in this arena. During the first Trump administration, changes were made or proposed to various visa programs, including the H1-B program. Employers that employ workers under the H1-B or myriad other visa or work authorization programs including Deferred Action for Childhood Arrivals (DACA) or Temporary Protected Status (TPS) should work closely with immigration counsel to stay on top of developments and prepare for any potential impacts to their workforce.
California also presents its own share of compliance issues. The state’s anti-discrimination laws prohibit taking adverse employment actions against workers based upon their national origin and immigration status. While removing a worker for lacking an authorization to work in the United States is a lawful and legitimate business decision, employers need to ensure that supervisors, managers and other decisionmakers avoid disparate treatment based on an actual or perceived protected class.
Lastly, during the first Trump administration, California enacted laws in direct response to changes in the federal government’s priorities and enforcement postures — the IWPA being one such law. As the second Trump administration gets underway January 20, 2025, employers should continue to review CalChamber resources for the latest updates and to monitor developments arising from the California Legislature and regulatory agencies.