What are key legal immigration considerations for HR ahead of Trump's return to office?

With the second Trump administration set to begin on January 20, 2025, employers must proactively prepare for significant changes and heightened enforcement of immigration laws.

The administration is expected to prioritize identifying unauthorized workers and enforcing compliance with the Immigration Reform and Control Act (IRCA), 29 USC Section 1802.

Employers who knowingly hire unauthorized workers may face intensified scrutiny and enforcement actions. Key enforcement tools used during the prior Trump administration—such as I-9 audits and worksite raids—are likely to return with greater frequency and severity.

Key immigration considerations for HR: I-9 compliance, audits, and inspections

Proper I-9 compliance is critical to avoiding substantial penalties. Civil fines for Form I-9 violations range from $281 to $2,789 per violation, with repeated violations incurring higher penalties.

Therefore, employers should ensure their Form I-9 records are accurate, up-to-date, and stored separately from other employment files. Upon receiving a Notice of Inspection from US Immigration and Customs Enforcement (ICE), employers usually must respond within 72 hours (three business days).

Although extensions may be requested, ICE is under no obligation to grant them. Consequently, to mitigate the risk of penalties, employers should implement the following best practices:

• Use the latest Form I-9: The US Citizenship and Immigration Services (USCIS) released a new Form I-9 in August 2023, which became mandatory on November 1, 2023. Ensure that all new hires and reverifications use this updated form.
• Retain forms appropriately: Keep Form I-9 records for former employees for the later of (a) one year after their termination date or (b) three years after their hire date.
• Conduct physical inspections for remotely verified documents: Employers must confirm the physical inspection of documents initially verified remotely during the COVID-19 flexibility period. The deadline to perform these inspections was August 30, 2023. Currently, only E-Verify employers meeting specific criteria may continue using remote document verification.
• Perform regular internal audits: Periodically review policies, procedures, and records for compliance.
• Consider electronic I-9 systems: Implementing electronic systems can streamline processes, reduce errors, and enhance compliance with federal and state requirements.

ICE worksite raids

During the prior Trump administration, Homeland Security Investigations (HSI), the division of ICE that conducts worksite immigration enforcement activities, increased the frequency and scale of worksite raids.

During a raid, immigration agents arrive without notice and may enter the public areas of a business without permission. However, a judicial warrant signed by a state or federal judge is required for access to private areas without the consent of the employer.

Worksite raids increased during the prior Trump administration

Administrative warrants issued by the Department of Homeland Security (DHS) are not sufficient to compel entry. The goal of most raids is to identify and arrest undocumented workers.

Consequently, the best way for an employer to mitigate risks associated with raids is to ensure that all employees are authorized to work in the United States. However, to prepare for a workplace raid and mitigate any associated risks during one, employers should implement the following best practices:

1. Develop a response plan: Train employees on their rights, such as their option to decline speaking with and or being interrogated by ICE officers and their ability to request an attorney.
2. Request identification from ICE officers: Obtain names and business cards.
3. Review warrants carefully: Verify that search warrants are properly signed and judicially issued before granting access to private areas.
4. Notify legal counsel immediately: Transmit the warrant to your attorney and, if possible, have them present during the raid. Note that ICE will not delay the raid for an attorney's arrival.
5. Document actions: Assign staff to accompany ICE officers, take notes, and record details of items seized.
6. Avoid obstructive actions: Do not engage in activities that could result in obstruction or harboring charges, such as hiding employees, shredding documents, or providing false information.
7. Follow up after the raid: Notify families of detained employees and, if applicable, inform union representatives.

Challenges with visa sponsorship

According to Carla Marshall, JD, a Global Immigration Compliance Manager with RSM US LLP, the prior Trump administration's strict enforcement also affected legal immigration processes and created challenges for employers sponsoring foreign workers.

She experienced “delays in visa processing, increased requests for evidence, and higher rejection rates.” Consequently, Marshall believes employers should anticipate similar obstacles and prepare accordingly. Therefore, to mitigate the risks associated with these visa-related challenges, she recommends that employers -

1. Invest in additional immigration resources: Support in-house immigration teams and engage experienced outside counsel.
2. Be proactive with filings: Review extensions, amendments, and permanent residency applications well in advance of deadlines.
3. Use premium processing: Expedite cases when possible both to minimize delays and attempt to complete current cases before the new administration begins.
4. Communicate frequently with sponsored employees: Address anxieties and ensure focus on work by maintaining open and transparent communication.

Consider industry-specific risks

Certain industries—such as construction, manufacturing, and meat/poultry processing—may face heightened scrutiny and enforcement. Employers in these sectors should prioritize compliance efforts and be prepared for potential I-9 audits and worksite raids.

The next Trump administration is expected to significantly ramp up immigration enforcement, focusing on unauthorized workers and employer compliance with immigration laws. Employers should proactively review their policies, procedures, and records to minimize risk. A comprehensive strategy—including robust I-9 compliance, preparedness for worksite raids, and proactive management of visa-related challenges—will be essential for navigating this new regulatory landscape.

Vanessa L. Johnson, MBA, MACC, JD, LLM-Tax Law, LLM-Health Law, is a licensed attorney, Associate Professor of Legal Studies at the University of Houston-Clear Lake, and multi-certified HR professional (SPHR, GPHR, SPHR-CA, SHRM-SCP, CMS) with over 20 years of HR and employment law experience. She has also been serving as a part-time HR consultant since 2021.