Federal immigration enforcement actions against employers are gradually advancing, but the intensity may escalate

Employer-side immigration attorneys told HR Dive that federal immigration authorities' enforcement activity may be gradually intensifying, but the slow pace has not changed the need for employers to remain vigilant.

Before President Donald Trump's inauguration, incoming officials promised large-scale workplace enforcement. To date, U.S. Immigration and Customs Enforcement (ICE) raids have primarily targeted small entities, with recent cases including a construction site in Louisiana and a market in Philadelphia. But human resources departments may also need to prepare for an increase in I-9 form audits.

ICE's strategy remains a black box

The I-9 form is used to verify whether employees are eligible to work in the United States and is required for all employees. According to Chris Thomas, a partner at the law firm Holland & Hart, I-9 form audits nationwide have increased since Trump took office, and this trend is expected to continue.

Part of ICE's strategy may involve quotas: Thomas said he spoke with an ICE agent "in a small place in Vermont" whose task was to deliver I-9 inspection notices to at least five employers per week. Thomas added that he expects ICE to expand its capacity to conduct audits by reassigning existing agency support staff and hiring outside contractors.

"This has been the plan since the election," Thomas said; for example, Trump signed an executive order on his inauguration day requiring the Secretary of Homeland Security to "substantially increase" the number of agents and officers across agencies including ICE.

"Right now they only have the capacity to conduct small audits, but we have good reason to believe they will expand their capacity and move toward larger-scale enforcement actions," Thomas continued.

ICE stated that it does not assign quotas to field offices, which focus on identifying, locating, and arresting noncitizens with criminal convictions or outstanding arrest warrants, as well as those who illegally re-entered or received final removal orders.

When asked about potential staffing increases, ICE referred HR Dive to the U.S. Department of Homeland Security (DHS). DHS declined to comment.

Bruce Buchanan, senior counsel at the law firm Littler Mendelson, said the government's gradual approach to enforcement is somewhat expected, partly due to earlier underfunding. Federal lawmakers addressed the agency's budget shortfall in a recent budget resolution, providing nearly $10 billion in funding for ICE.

Buchanan said he has not yet heard of ICE using inspection notice quotas like the one Thomas described, but he noted that agents might satisfy such requirements by distributing flyers for the agency's IMAGE program to employers rather than issuing formal inspection notices. IMAGE is a voluntary partnership program between the federal government and the private sector. "That would clearly count as an inspection notice," Buchanan said.

It remains unclear how strict ICE will be with individual employers. Buchanan said one of his clients was contacted by Homeland Security Investigations, which requested that the client voluntarily provide its I-9 forms to the agency by a specified date, but after further communication, was told it could take as much time as needed.

'It's terrifying the community'

Mary Pivec, an attorney at the law firm Pivec & Associates PLLC, said employers in the food service, construction, and hospitality industries are "on pins and needles" in anticipation of enforcement actions under the Trump administration. She added that these industries, along with warehousing, light manufacturing, assembly, transportation, and receiving, are expected to be primary targets.

Pivec said ICE's delivery of inspection notices has been "sporadic," but she has seen cases where teams of five to six agents confronted workers, who could be detained if they could not answer agents' questions and provide documents. According to The Baltimore Banner, agents detained multiple employees at a Baltimore restaurant in early February; employees were also required to mail their I-9 forms to ICE.

"These arrests are happening," Pivec said. "It's terrifying the community."

ICE's methods for deciding which businesses to target vary. David Adams, account manager at background screening provider SafestHires, said the agency may rely on word of mouth, especially in communities where it is well known that an employer may seek to hire noncitizens not authorized to work.

Disgruntled former employees may also report potential violations to ICE. "These are easy targets because they already have intelligence," Adams said.

An ICE spokesperson said via email that the agency targets employers who violate employment laws.

ICE is not the only agency that may assess employer compliance with immigration laws. Pivec said U.S. Citizenship and Immigration Services' (USCIS) Fraud Detection and National Security Directorate, which conducts compliance reviews for certain visa applications, has also increased workplace enforcement.

U.S. Customs and Border Protection (CBP) is also a concern. Given the administration's high-profile detentions of international travelers, students, and job seekers, some employers are worried about international travel. Thomas said companies are reassessing whether they can afford to send employees on international business trips, partly due to concerns that authorities may inspect travelers' electronic devices, which could raise privacy issues.

"This is a period of heightened scrutiny by CBP at ports of entry," said Daniel Brown, a partner at the law firm Fragomen. "It's best to ensure, by checking with company counsel, that there are no issues with travel on a case-by-case basis."

Employer exposure

According to Thomas, employers face three main concerns regarding immigration enforcement actions: civil fines, potential criminal risk, and overall operational impact. "In some ways, they are all equally frightening," he said.

Civil penalties for I-9 form paperwork violations alone can reach up to $2,861 per violation, while penalties for knowingly hiring, recruiting, referring, or retaining unauthorized noncitizens can reach up to $5,724 for first-time offenders. The latter penalties increase per violation with subsequent offenses, with maximum fines of $28,619 for third or subsequent violations.

Under USCIS rules, if employers are found to have a pattern or practice of knowingly hiring or continuing to employ unauthorized noncitizens, they may face fines and penalties, which could include imprisonment. Such sentences may also be sought if employers are found to have committed fraud, misrepresentation, or abuse of visas, immigration permits, or identification documents.

Thomas said authorities have focused on employers' use of electronic I-9 systems, which HR Dive previously reported was an enforcement target of the Trump administration. Thomas advised employers to be prepared to provide all appropriate audit trail records to agents upon request—adding that agents may even ask employers to demonstrate on-site how their electronic procedures work.

"I've seen this before," Thomas said when asked whether ICE requiring demonstrations of electronic I-9 procedures was a new strategy in Trump's second term. "Now they are more aggressive about it."

DHS issued regulations on the use of electronic I-9 forms in 2006, but Fragomen's Brown said employers have received little guidance on how to implement them. He added that no public judicial cases show employers being penalized for violating electronic I-9 regulations, which has also contributed to a lack of public awareness of the issue.

Brown said the electronic I-9 system market is "highly fragmented," with varying quality in how I-9 procedures comply with existing regulations.

"I don't think anyone has malicious intent," he said of potentially noncompliant systems. "What makes sense from a programming perspective may not align with ICE's intent."

Brown added that two main areas of concern are the use of electronic signatures from employees to complete attestation requirements on the I-9 form, and the audit trails captured by employer systems, which show what actions were taken on specific forms.

"People should be aware that there are cases currently underway where employers are being fined, or ICE is trying to impose huge fines, millions of dollars, on employers for the systems they are using," Brown said.

How to prepare for a visit

Thomas said he encourages employers to take three main steps to prepare for an ICE visit:

• Train employees to identify potential fraud, including fraud in employment authorization documents.
• Retain copies of all documents.
• Consider enrolling in E-Verify to show evidence of compliance efforts.

"Once they have taken these steps, they should begin a rigorous I-9 audit with the support of outside counsel," Thomas continued. If employers suspect fraud among employees, they should take appropriate steps to meet with the employee and give them an opportunity to present documents. If that fails, the next step is termination of employment and hiring new employees with stricter processes, Thomas said.

Buchanan said that since the 2024 presidential election, his firm has seen a "significant increase" in clients conducting preventive I-9 audits, "and frankly, that has continued to this day."

Pivec said training is also needed on the complexities of the specific types of warrants ICE issues. Sometimes, agents try to explain the I-9 compliance process to employer representatives, and it may be in the employer's interest to listen; "if you think letting the agency give you a lecture will satisfy it... let them talk," Pivec said.

But if agents want to interrogate HR personnel about their compliance processes, that is a completely different matter. "No representative of the company should be alone with agents," Pivec said, "and no representative should proactively provide any information to agents without a subpoena and the protection of legal counsel present."

Overall, employers should maintain a defensive posture on immigration compliance and "act accordingly," Pivec said. "This is not the time to take risks."