Employment Law Update: Immigration Challenges Await Employers In 2025
Date: December 19, 2024
The incoming Trump administration has been sending strong signals, however, come January 20, 2025, there will be an immediate and substantial shift in U.S. immigration policy. The likely outcome will be more restrictive immigration policies, increased worksite enforcement activity, including employer fines and likely criminal prosecutions, as well as potential delays in lawful immigration, and the curtailment of some current immigration programs.
Employers should immediately start to prepare for significant action from the Executive Branch that will likely include:
- More large-scale worksite enforcement actions and audits, with a focus on key industries, such as hospitality, agriculture, construction, and food processing, as well as critical infrastructure. Enforcement actions are also likely to target joint employer relationships, such as contracted workers through staffing agencies. There are very substantial fines for deficient I-9 recordkeeping as well as the employment of unauthorized workers, with few options for a reduction in the penalties absent protracted litigation.
- In cases involving the hire of unauthorized workers, owners, and managers may be increasingly subject to criminal prosecution for knowing hire violations, that will be in addition to the large civil penalties on their businesses. Criminal prosecution of large-scale violators is certain to follow as the administration looks to eliminate employers who serve as a draw to undocumented workers.
- Worksite raids and audits will also focus on the removal of undocumented and unauthorized workers from the worksite. Flexible enforcement policies that have provided employers with some leeway to bring their business into compliance without jeopardizing operations are likely to be restricted. As a result, even those employers who thought they were compliant may experience the rapid loss of critical workers, seriously impacting their business.
- Changes to the I-9 process, particularly steps taken to accommodate remote work, may see rollback, imposing additional costs on employers to complete I-9 verification steps in person, for a scattered workforce. Electronic I-9 systems that do not meet stringent requirements may also come under increased scrutiny.
- Even lawful immigration processes may be negatively affected. Employers are likely to see increased processing delays and costs for essential workers, including heightened scrutiny of applications, and delays at consular offices. This will substantially draw out the process meaning that planning well in advance will be necessary to avoid business interruptions.
- Employers can also expect new restrictions on the asylum process as well as the TPS program, which President-Elect Trump has promised to restrict. Both programs are the source of many lawful workers for U.S. businesses.
Employers should be planning now to ensure their immigration-related practices are in compliance. This means keeping abreast of all legal developments and taking the time to audit existing I-9 processes. Forms should be properly completed with no obvious mistakes or missing information. Documentation should be reviewed and missing information or missed reverifications should be corrected consistently with the regulations. Also, be prepared for inquiries from employees who may lose their employment authorization or are concerned about their lawful status.
Engaging legal counsel in the process is also recommended in order to ensure compliance measures are consistent with the law. The Labor & Employment team at Whiteford can assist concerned employers on these issues.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.