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 Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions