US immigration enforcement against employers is progressing gradually, but intensity may significantly escalate

Federal immigration authorities may be gradually ramping up enforcement activity, but the slow pace does not change the need for employers to remain cautious, employer-side immigration attorneys told HR Dive.

Before President Donald Trump took office, incoming officials promisedmassive workplace enforcement. To date, U.S. Immigration and Customs Enforcement (ICE) has primarily targeted smaller entities with raids, with recent cases includinga construction site in Louisianaanda market in Philadelphia. But HR departments may also need to prepare foran increase in Form I-9 audits.

ICE strategy remains opaque

Form I-9 is used to verify that employees are eligible to work in the U.S. and must be completed by all employees. According to Chris Thomas, a partner at the law firm Holland & Hart, I-9 audits have increased across the country since Trump took office, a trend 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 audit capacity by reassigning existing agency support staff and hiring outside contractors.

"This has been the plan since the election," Thomas said; for example, Trump signed anexecutive orderon his first day in office, directing the Secretary of Homeland Security to "substantially increase the number of agents and officers in agencies including ICE."

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

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

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

The administration's gradual approach to enforcement is somewhat expected, partly due to previous underfunding, said Bruce Buchanan, senior counsel at Littler Mendelson. Federal lawmakers addressed the agency's budget shortfall in arecent budget resolutionthat provided nearly $10 billion in funding for ICE.

Buchanan said he has not yet heard of ICE using the kind of inspection notice quotas Thomas described, but he said agents might satisfy such requirements by handing employers flyers for the agency'sIMAGE programrather than issuing formal inspection notices. "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 asked the company to voluntarily provide its I-9 forms by a specified date, but after further communication, was told it could take as much time as needed.

"This intimidates the community"

Employers in the food service, construction, and hospitality industries are "on pins and needles" in anticipation of enforcement actions under the Trump administration, said Mary Pivec, an attorney at Pivec & Associates PLLC. She added that these industries, along with warehousing, light manufacturing and 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. In early February, agents detained multiple employees at a restaurant in Baltimore; according toThe Baltimore Banner, employees were also asked to mail their I-9 documents to ICE.

"These arrests are happening," Pivec said. "This intimidates the community."

ICE's methods for deciding which businesses to enter 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 widely known that an employer may 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 in an email that the agency targets employers who violate employment laws.

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

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

"This is a time of heightened scrutiny by CBP at ports of entry," said Daniel Brown, a partner at Fragomen. "It's best to check with company counsel to ensure there are no issues with travel based on the specific circumstances."

Employer exposure

According to Thomas, employers face three main concerns in 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 Form I-9 paperwork violations alone top out at$2,861per violation, while fines for knowingly hiring, recruiting, referring, or retaining unauthorized noncitizens are up to $5,724 for first-time offenders. The latter penalties increase with each subsequent violation, with a maximum of $28,619 for third or subsequent violations.

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, according to USCIS,which may include imprisonment. Such sentences may also be sought in cases where employers are found to have been involved in fraud, misrepresentation, or abuse of visas, immigration permits, or identification documents.

Thomas said authorities have focused onemployers' 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 in case they are required to provide agents with all appropriate audit trail records upon request—agents may even ask employers to demonstrate on-site how their electronic system works, he added.

"I've seen this before," Thomas said when asked whether ICE demanding demonstrations of electronic I-9 systems is a new strategy of Trump's second term. "They are more aggressive about it now."

DHS issued regulations onthe use of electronic Form I-9in 2006, but employers have received little guidance on how to implement them, said Brown of Fragomen. The lack of publicly available judicial cases where employers were penalized for violating electronic I-9 rules has also led to a lack of public awareness of the issue, he added.

Brown said the market for electronic I-9 systems is "highly fragmented," and the quality of I-9 processes in complying with existing regulations varies.

"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 major areas of concern are the use of electronic signatures by employees to complete attestation requirements on Form I-9, and the audit trail records captured by employer systems that show actions taken on specific forms.

"People should be aware that there are cases currently underway where employers are being fined, or ICE is seeking massive fines against employers, in the millions of dollars, because of the systems employers use," Brown said.

How to prepare for inspections

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

• Train employees to identify potential fraud, including employment authorization documents.
• Keep copies of all documents.
• Considerjoining E-Verifyto demonstrate 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 by an employee, they should take appropriate steps to meet with the employee and give them the opportunity to provide documents. If that fails, the next step is termination and hiring a replacement with stricter processes, Thomas said.

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

Pivec said employees also need training on the complexities of the various specific types of warrants ICE issues. Sometimes, agents try to explain the I-9 compliance process to an employer's representative, and the employer may be willing to listen; "if you think there's a benefit to letting the agency give you a happy little speech... let them do it," Pivec said.

But if agents want to interrogate HR employees about compliance processes, that is another 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 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."