Podcast: Preparing for Immigration Compliance
The incoming Trump Administration will bring lots of tumult in 2025, but we can make one safe bet: that immigration compliance will be a top enforcement priority. So today we have another Radical Compliance podcast to unpack what that enforcement wave might look like, and how compliance teams can prepare now for what’s to come.
Immigration compliance has been on my mind for a few reasons. First, I read the news — and clearly more immigration enforcement is coming. Compliance, HR, and legal teams cannot ignore that issue as it marches toward us.
Second, immigration enforcement is a great example of the multi-dimensional challenges that compliance officers face these days. You’ll need an immigration compliance program that meets the letter of the law, which is complicated enough; and a program that can endure the tempest of the tweet, as President-elect Trump barks out one goal after another, sometimes contradictory and often at random; and a program that can withstand the deeply personal, divisive questions that might arise about employees in your workforce.
To discuss all those issues I talked with Bill Riley at consulting firm Guidepost Solutions. Riley is president of the compliance practice there, which includes the firm’s Immigration and Border Services practice. Earlier in his career Riley spent 20 years as a special agent with U.S. immigration enforcement agencies, so he knows the terrain. You can hear our complete conversation above; and I have a few more of my own observations below.
Raids, Maybe Not; Paperwork, Definitely
At least in the immediate term, companies don’t need to brace for large-scale workplace raids akin to what America saw in the 1990s and 2000s. Such raids require extensive planning and coordination among multiple agencies, and cost a lot of money. Even the first Trump Administration executed only a handful of them, so you don’t need to panic that immigration agents will be busting down the door on Jan. 21.
Riley
Instead, Riley said, companies should brace for more immigration audits in 2025, where Immigration and Customs Enforcement (ICE, the lead immigration enforcement agency in the United States) will inspect your Form I-9 filings to document that your employees are working legally. Those audits will help ICE understand where possible abuses are, so that the agency can plan future enforcement actions — yes, including the prospect of workplace raids sometime in the future.
ICE does tend to target sectors where the risk of undocumented workers is greatest, such as staffing agencies, agriculture, hotel and food services, janitorial services, and construction. Still, as Riley noted, I-9 rules apply to every business with an employee; “that’s every employer there is.” So every business must have some sort of I-9 compliance program, no matter how manual and simple that process is.
What should that I-9 compliance program address? Riley stressed two points: the information on an employee’s I-9 form must be correct, and the form itself must be filed promptly. (The employee must submit his or her identity verification documents by the end of the first day of employment; you must file the I-9 by the end of the third day of employment.)
OK, but compliance officers have more to consider here. So do internal auditors assessing your company’s I-9 compliance efforts.
First, this means that I-9 compliance is a procedure and training issue, with backup controls to catch and address any deficiencies. Have you defined a clear, simple process for all HR teams or onboarding managers to collect I-9 information? Have you trained all those managers on how to follow the procedure? If you rely on staffing agencies or similar vendors, have you included contract language requiring them to heed I-9 compliance carefully?
Second, you can only remediate inaccurate information, not a late filing. That is, if an employee provides inaccurate documentation or you somehow record the information improperly, you can correct that error after the fact — but, as Riley noted, “you can’t fix lateness.” So developing a robust process to gather and file I-9 information on time is a priority. If you don’t, you’re waving a red flag to those ICE auditors.
The Risks of Documentation Fraud
As important as timely filings might be, I worry more about the risks of inaccurate I-9 information. Employers face a constant threat of fake documentation, so you need some sort of anti-fraud procedure that will at least try to suss out those bogus documents.
Riley and I discussed what that anti-fraud effort should entail. The e-Verify program certainly helps, because it can catch a fictitious identity — but it primarily works to catch totally fictitious identities. If an undocumented worker submits the legitimate ID papers of a U.S. citizen, that might fall through the e-Verify cracks.
“A company that over-relies on E-Verify without doing a fraud risk assessment, that’s a mistake as well,” Riley warned. (Riley would say that, of course, since his firm assists with I-9 fraud risk assessments; but he’s not wrong to raise the point.)
I also worry about the rise of deepfakes, which will make spotting false documentation even more difficult. For example, employees might submit temporary IDs (such as a temp driver’s license) for I-9 verification. Those are legal identity documents, and you can use them for I-9 purposes; but they’re typically paper-based documents without a photo, and nowadays can be easily faked. The fake data itself (or more accurately, the legitimate data of someone else, being used fraudulently) is now readily available for purchase on the dark web.
So are you sure your anti-fraud procedures are keeping pace with the evolving risk? That’s a question your legal, HR, and internal audit teams might want to ponder.
Other Immigration Compliance Landmines
Riley and I covered other immigration issues that could streak across a compliance officer’s radar screen, too.
Shifting definitions of illegal status. The incoming Trump Administration has said it will emphasize the deportation of immigrants who have committed serious crimes in the United States; other immigrants, such as DACA recipients or those with temporary protected status, will be a lower priority.
That’s a nice idea, but as president, Trump could always change his mind. He could rescind protected status with an executive order and suddenly all those employees in your workforce who did have protected status no longer will.
Anticipate that risk, Riley said. Start looking for employees with temporary protected status now (Haitians, Venezuelans, Afghanis, DACA recipients), and re-verify their status on a regular basis.
“You can get an understanding of what your workforce makeup is” in case the Trump Administration does start revoking protected status, Riley said. “You may not be able to help that worker, but at least from an operational and compliance standpoint, you know what that impact will be to your current workforce.”
Internal reporting and investigation protocols. Yes, you’ll need to investigate hotline calls about an employee’s immigration status just like you’d do with any other hotline tip. No, a company can’t restrict or discourage external reporting to ICE or any other agency. That should all be Internal Reporting 101 stuff, applied to I-9 issues.
Then again, your protocols should also use common sense. When someone calls the hotline to say, “My coworker speaks Spanish so he must be undocumented,” that’s not enough to warrant an investigation. On the other hand, if the tipster says, “My coworker goes by John Smith at work but people call him Juan Hernández everywhere else,” that’s a flag of a much deeper red.
Riley and I discussed other issues too, so do have a listen to our full conversation. Then plan accordingly, because change is coming.