Given the flurry of immigration-focused executive orders and presidential memoranda issued after the 2025 inauguration, employers in California and across the nation are increasingly concerned with ensuring their businesses are compliant with current immigration laws and regulations. But to understand what current law mandates is much more challenging than it would seem. And the consequences for not doing so get steeper by the day in this fast-changing policy landscape.
In fact, the threat of civil penalties and criminal liability for violating regulations has increased so much that it has made immigration compliance a top business priority. A recent survey by the Society of Human Resource Managers found that over 70% of HR leaders reported moderate to high concern about immigration compliance.
Intensified immigration enforcement efforts have led to more frequent workplace audits and raids. Industries such as agriculture, construction and hospitality, which heavily rely on immigrant labor, are particularly affected. And in California, these industries make up over 15% of the state's total economic output.
These employers, and others around the state, are expressing concerns around worksite enforcement efforts by Immigration & Customs Enforcement (ICE), which can manifest through unannounced visits or I-9 audits. Both the frequency and costs of these audits and subsequent violations have sharply increased.
To prepare for potential worksite enforcement activities, we recommend that employers ensure that they are properly following all I-9 procedures and best practices, as well as consider undertaking a self-audit to ensure compliance. The consequences for violations can be quite extensive. For example, 1,000 I-9 forms and a 65% error rate could face potential fines exceeding $1.8 million. Therefore, working with immigration and employment counsel on I-9 rules is critical to understanding the ever-shifting landscape and to maintain a level of compliance that protects your business.
There are some things you can do to stay ahead of the curve. If you employ foreign nationals, ensure that you are maintaining all required documentation, including public access files for labor condition application-based visas. Create policies around worksite enforcement visits and have a plan in place, including designating public and restricted areas, ensuring a point person is available to review any warrants or notices of inspection, and educating the workforce on properly responding to such a visit.
Another area of concern is around international travel, and the potential for employees getting stuck outside of the U.S. due to visa issuance delays or not being able to re-enter the country. Relatedly, there are also changing practices around electronic device surveillance that need to be accounted for.
It is highly recommended to develop policies around international travel and to work with expert counsel to do so. There are a multitude of considerations when a U.S.-based employee (whether a U.S. citizen or not) travels overseas for work, including ensuring appropriate visas are in place to work in another country, and to return to the U.S., as well as tax implications, information security and remote work policies, among others. We recommend working with employees to make sure that they have all necessary documents when applying for any visa, and then also when seeking admission to the U.S. Finally, in terms of good governance, it may also be wise to prepare contingency plans and establish protocols to manage potential disruptions caused by employees being unable to return to the U.S. as scheduled.
Immigration law is vast and complex, and no two cases or situations are alike. Unfortunately, a great deal of misinformation is shared across the digital world and the rumor mill. Some of the most common misunderstandings include the belief that enrolling in E-Verify is itself sufficient to protect a company from audits or enforcement actions. Employers are still required to complete and maintain compliant Form I-9s and can be audited or penalized for errors or omissions.
The fast-changing landscape can truly be a potential minefield for businesses without proper counsel. It has never been more important to ensure best practices regarding immigration employment policies and protect the viability of your business. Proven and experienced immigration counsel can help employers successfully cut through the noise, help secure the talent that they need to run their business, and ensure compliance.