United States: Construction One-Minute Read: Trump Administration Increases Resources To Crack Down On Employers For I-9 Compliance

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.