Construction One-Minute Read: Trump Administration Increases Resources to Crack Down on Employers for I-9 Compliance

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

As part of his first-week initiatives, President Trump turned his focus toward immigration. These initiatives included dramatically expanding the resources of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE) agency. Specifically, the Trump administration authorized the hiring of 10,000 ICE agents across the United States. This increase in the number of ICE officers will have a direct impact on employers as it relates to I-9 compliance and ICE audits of Forms I-9. For example, it is anticipated that ICE Homeland Security Investigations (HSI) audits will increase to around 3,000 in 2017, tripling the number of audits performed in recent years.

Why Care About I-9 Compliance?

There is potential civil and criminal liability associated with the completion of the Form I-9. For example, each paperwork violation—regardless of whether the individual completing the Form I-9 is a U.S. Citizen or alien—exposes an employer to fines ranging from $216 to $2,156 for each violation. In addition to civil liability penalties, ICE can pursue criminal liability penalties. The following are the legal theories that ICE may pursue to bring criminal charges:

  1. Harboring, encouraging, or inducing an alien to remain in the United States in violation of the law. If performed for commercial advantage, an individual could face up to 10 years per count in prison. In addition, company assets involved in the illegal activity could be subject to civil forfeiture.
  2. Knowingly hiring at least 10 unauthorized individuals within a 12-month period with actual knowledge that they were not authorized to work and that they were brought to the United States in violation of the law. This violation carries a penalty of up to five years in prison.
  3. Impeding, impairing, or obstructing lawful government functions of the Internal Revenue Service (IRS) or U.S. Social Security Administration. This offense is punishable by up to five years in prison.
  4. Making material misrepresentations on a Form I-9. A conviction is punishable by up to five years in prison.
  5. Engaging in a pattern or practice of hiring, recruiting, or referring for a fee unauthorized aliens. This violation carries a possible term of imprisonment of up to six months and fines of up to $3,000 for each unauthorized alien.

If I Hire Union Labor, Does That Shield Me From Liability?

No. Form I-9 rules allow an employer who hires labor pursuant to a multi-employer bargaining unit to rely on and use a Form I-9 properly completed within the past three years by another employer within the same association. When doing so, an employer is protected from civil liability associated with the Form I-9. But when the Form I-9 is not properly completed, the subsequent hiring employer assumes civil liability associated with the errors in those forms.

In addition, the employer assumes criminal liability associated with knowingly hiring someone who is not authorized to work in the United States. There is a reasonable presumption that an employer knew the person was unauthorized when it hires someone who is not authorized to work. As a result, employers hiring union workers should always review previously completed I‑9s to ensure compliance with immigration laws.

Employers are presented with a choice when reviewing union labor hiring practices. On one hand, employers can use earlier completed Forms I-9, but they need to verify that these forms were properly completed to avoid liability. Doing so, however, will decrease the administrative burden associated with having to run E-Verify queries on new employees. On the other hand, employers can treat union hires as “new hires” and complete new Forms I-9, and then run E-Verify queries if required. Doing so may increase the burdens associated with a collective bargaining agreement, but it will better protect the employer from liability associated with improperly completed Forms I-9.

Do I Need to Ensure I-9 Compliance for My Contractors?

In general, employers are not required to complete and retain Forms I-9 for their independent contractors. But the definition of an independent contractor is more restrictive in the immigration context than some employers understand. In fact, ICE takes a narrower reading of independent contractors than the IRS. As a result, individuals who may be considered independent contractors for tax purposes would be considered employees for immigration purposes requiring the completion of Forms I-9.

An exception to the independent contractor rule is that prime contractors are required to ensure their subcontractors use E-Verify when:

  1. the prime contract includes a Federal Acquisition Regulation (FAR) E-Verify clause;
  2. the subcontract is for commercial or noncommercial services or construction;
  3. the subcontract has a value of more than $3,000; and
  4. the subcontract includes work performed in the United States.

In general, subcontractors who do not provide any services and only provide supplies are not subject to the E-Verify federal contractor rule.

Prime contractors may be subject to fines and penalties if they knowingly continue to work with subcontractors who are in violation of the E-Verify requirement. While prime contractors are not responsible for verifying their subcontractors’ individual employees, they must ensure that all covered subcontracts at every tier incorporate FAR clause 52.222-54 – Employment Eligibility Verification.

How Do I Clean Up My Forms I-9?

Employers would do well to be consistent and transparent when conducting Form I-9 internal audits. When errors are found in Forms I-9, it is not helpful to discard or apply correction fluid to the forms. Instead, corrections are best made by crossing out, dating, and initialing the correction on the Form I-9. (For a more detailed explanation of Form I-9 best practices, please reference our earlier article here.) Common errors found in Forms I‑9 include the following:

  • the employee failed to make a selection in the attestation section of Section 1;
  • the employee failed to date his or her signature in Section 1;
  • the employer failed to write the employee’s name at the top of Section 2;
  • the employer failed to insert the issuing authority for the verification documents;
  • the employer failed to insert the first day of employment in Section 2; or
  • the employer failed to sign and date Section 2.

What if I Forgot to Create an E-Verify Query for an Employee?

If an employer discovers through an internal audit that it inadvertently failed to create an E‑Verify case for employees hired after the employer enrolled in E‑Verify, the employer should bring itself into compliance and create a case for the employee. But if the employer did not use the system as a business practice at the time, it should not go back and create cases for employees hired during the time that there was deliberate non-use of E-Verify. It would also be wise to complete a signed and dated explanation of the corrective action taken and include that explanation with the employee’s I-9 documentation, whether that documentation is stored in physical or electronic files.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.