Immigration Compliance: Why Employers Should Reassess Their Risk Now
The current immigration compliance environment: why this matters now
Employers are operating in an immigration compliance environment defined by heightened enforcement, frequent changes to immigration benefit programs, and ongoing litigation that can alter or pause those changes with little notice. While core employer obligations under immigration law are not new, the risk associated with noncompliance has increased significantly as scrutiny intensifies and rules change more quickly.
Government enforcement efforts are increasingly focused on the unlawful employment of foreign nationals. Importantly, this concept extends well beyond the employment of undocumented individuals. Employers face exposure where individuals are employed without work authorization, where authorization has expired or been revoked, where the terms of employment no longer align with the limits of the individual’s immigration status, or where employers fail to properly comply with immigration verification requirements—such as completing and retaining accurate Form I-9s and complying with applicable E-Verify rules.
At the same time, many compliance failures are not the result of intent, but of process gaps. Immigration rules are complex, guidance evolves rapidly, and responsibility for compliance is often spread across multiple teams. When immigration compliance is treated as a series of disconnected tasks rather than a coordinated program, risk increases.
What “unlawful employment” means
Unlawful employment can arise in several ways, such as:
- Employing individuals with no authorization to work in the United States.
- Employing individuals who are lawfully present but not authorized to work, or whose employment authorization has expired or been revoked.
- Employing individuals who are authorized to work only under specific conditions—such as for a particular employer, in a defined role, at a specific location, or for a limited period—where the actual job no longer complies with those restrictions.
The third category is often overlooked. Routine business changes—promotions, pay adjustments, location changes, remote work arrangements, reorganizations—can unintentionally place a sponsored employee outside the scope of their authorized employment if those changes are not reviewed through an immigration compliance lens.
Form I-9 compliance and work authorization are separate obligations
Employers should also understand that liability does not depend solely on whether an employee is ultimately authorized to work.
Federal law requires employers to timely and properly complete, retain, and update Form I-9 for every employee, regardless of citizenship or immigration status. Failure to verify employment eligibility correctly can result in significant civil penalties even when the employee was, in fact, fully work authorized.
In addition, employers that participate in E-Verify—or are required to do so under federal, state or local law—face separate and independent compliance obligations. E-Verify does not replace the Form I-9 and carries its own procedural requirements, including timely case creation, proper handling of tentative nonconfirmations, and adherence to both federal program rules and applicable state mandates.
Failure to comply with E-Verify requirements can create exposure even where Form I-9s are otherwise complete and employees are work authorized, underscoring that immigration compliance involves multiple, parallel systems that must be managed together.
As enforcement activity increases, technical and paperwork violations—such as late completion, missing signatures, improper reverification, or inconsistent documentation—are less likely to be overlooked and may serve as the basis for broader investigations.
Immigration compliance is an interconnected system
Immigration compliance is not a single requirement. It is a set of distinct but interrelated compliance processes, each with different rules, timelines, and enforcement mechanisms. Breakdowns in one area frequently create exposure in another.
Form I-9 and E-Verify compliance (all employees)
Form I-9 requirements apply to every employee working in the U.S. and include proper completion, document review, reverification, and record retention. These obligations exist independently of an employee’s underlying immigration status and are a common focus of enforcement activity. Employers should also remember that Form I-9 requirements apply to all U.S. employees, regardless of payroll source. This includes foreign nationals who are working in the U.S. but continue to be paid by a foreign entity, such as employees in L-1 status.
In addition, employers that participate in E-Verify—or are required to do so under federal, state or local law—face separate and independent compliance obligations
Sponsored-worker role and change management
For employees working pursuant to nonimmigrant visa sponsorship, compliance extends beyond the I-9. Employers must ensure that the employee’s actual role, duties, compensation, and work location remain consistent with what was presented to the government at the time of filing. Unreviewed changes are a frequent source of compliance issues.
Public Access Files and PERM audit files
Employers sponsoring H-1B workers must maintain Public Access Files, and employers sponsoring workers for permanent residence under the Permanent Labor Certification (“PERM”) must maintain PERM audit files. These are separate compliance obligations, subject to inspection, that require accuracy, completeness, and proper retention. They fall squarely under the broader umbrella of immigration compliance.
Travel-related risks for foreign nationals
International travel can impact a foreign national’s status due to CBP error, shortened admission periods, or incorrect classification on the Form I-94 Arrival/Departure Record. Because prior approval notices or documents may remain unexpired, employers may have no visibility into these changes unless there is a process for employees to review and report issues after reentry.
While employers are not required to collect a new Form I-94 after every trip, it is a sound compliance practice to ensure that foreign national employees understand their responsibility to review their I-94, confirm it is correct, and promptly raise any concerns.
Disruption risk and contingency planning
Travel bans, adjudication pauses, and benefit expirations now require employers to consider contingency planning in the event an employee cannot renew status, obtain an extension, or return to the United States from travel. These disruptions can have immediate compliance and operational consequences.
Workplace enforcement preparedness
Increased worksite enforcement activity highlights the importance of having a clear response plan for inspections, audits, subpoenas, or site visits. Employers benefit from defining roles, communication protocols, and document-handling procedures in advance.
Why process sustainability and organization matters
Immigration compliance processes must be operationally sustainable. Even technically accurate policies will fail if they are not aligned with how the organization actually hires, manages, and changes its workforce.
Lack of stakeholder buy-in, unclear ownership, or workflows that do not reflect real-world operations increase the likelihood of inconsistent execution and error. Immigration compliance is not an HR or Legal-only function—it requires coordination among legal, recruiting, HR, payroll, managers, operations, and leadership.
Well-designed compliance systems reduce risk by improving visibility, consistency, and communication—not by adding unnecessary complexity.
What employers should be doing now
In the current environment, it is more important than ever that employers consider whether their immigration compliance framework is:
- Legally compliant
- Operationally workable
- Consistently followed across the organization
Practical steps may include:
- Reviewing and testing I-9 policies and reverification procedures
- Conducting I-9 audits to identify and correct technical errors, including confirming at Form I-9s are completed for all U.S. workers, regardless of payroll source. This includes foreign nationals who are working in the U.S. but continue to be paid by a foreign entity, such as employees in L-1 status.
- Assessing Public Access File and PERM audit file compliance
- Implementing change-management protocols for sponsored employees
- Performing targeted checks to ensure HRIS data aligns with immigration requirements
- Establishing or updating workplace enforcement response plans
- Developing, documenting and implementing comprehensive, sustainable processes.
- Training staff
While employers rightly strive for accuracy and full compliance, effective immigration compliance depends on maintaining control, visibility, and consistency across processes. As enforcement priorities expand and immigration rules continue to shift, employers are best positioned to manage risk when their systems support timely oversight, clear communication, and consistent execution.
Proactive assessments—such as I-9 audits, Public Access File reviews, sponsored-worker alignment checks, and enforcement preparedness planning—can help employers identify vulnerabilities early and build compliance systems that withstand increased scrutiny.
With extensive experience advising employers and supporting in-house compliance programs, Maggio Kattar understands both the legal requirements and the operational realities of immigration compliance. We welcome the opportunity to discuss your current practices and how we may assist.