Regulatory uncertainty stemming from the incoming presidential administration has many legal and HR professionals considering their I-9 employment verification processes. A key concern is to ensure compliance with immigration regulations in the face of significant and potentially dynamic changes in Federal monitoring and enforcement. As noncompliance potentially leads to penalties such as fines, business disruptions, and loss of key personnel, employers are keen on conducting I-9 audits in order to ensure compliance. This is consistent with the prior administration’s focus, during Trump’s first term, on E-Verify enforcement.

To mitigate these risks, employers should review internal policies and enhance their I-9 compliance procedures. While completing and retaining Form I-9s may seem straightforward, even employers with strong compliance programs can inadvertently make mistakes, such as incomplete forms, delayed completion, misplaced documentation, or failing to adhere to retention rules—leaving them vulnerable during audits. It is therefore recommended for employers to review and conduct internal I-9 Audits to stay compliant.

The Labor Condition Application process may face stricter enforcement in the near future, with employers potentially required to meet additional legal obligations related to wage levels and job postings. Under the previous administration during Trump’s first term, the Department of Labor proposed significant wage increases, including raising the Level 1 wage from the 17th to the 45th percentile of prevailing wages. For Level 4, the proposal aimed to increase the threshold to the 95th percentile, which raised concerns among employers due to the potential financial burden. If these changes are implemented, they could lead to a higher wage threshold, making it more challenging for employers to comply.

Job posting rules may face challenges too, emphasizing greater transparency in job descriptions and posting notices. Employers might see increased scrutiny to ensure job requirements and wage details are accurate, and compliant with regulatory standards. These measures aim to confirm that employers are making genuine efforts to recruit U.S. workers before considering foreign labor.

Internal wage and posting audits are essential for ensuring compliance and proactively identifying potential issues before they become significant concerns.

Stricter regulations, higher denial rates, and more Requests for Evidence (RFEs) are expected for H-1B and L-1 visas under the new administration. Employers will need to provide stronger evidence that foreign workers are necessary and do not displace U.S. workers. Scrutiny will likely focus on the qualifications of foreign workers, job role specifics, prevailing wage compliance, and whether the position truly requires specialized skills.

Employers must work on strengthening their documentation, preparing accurate petitions, enforcing proper workforce planning and proactively auditing the internal practices that include wage determination and job posting notices, etc.

EB-2 and EB-3 green card applicants may face potential delays in processing times, higher denial rates, and increased challenges due to additional burdens on permanent residency applications. Per-country limits and numerical caps are also expected to impact multiple green card categories.

To mitigate these challenges, employers and applicants should engage in advance planning and regularly monitor the State Department’s visa bulletin for updates. Additionally, visa renewals and extensions should be initiated well in advance to avoid disruptions in visa approvals. For expedited processing, the premium processing option can be utilized to accelerate renewals and reduce the risk of delays.

Employers should engage immigration experts to help them ensure that petitions are drafted in compliance with immigration requirements, conduct proactive audits, and consistently monitor visa applications while reviewing and updating their policies to adhere to regulatory requirements.  Submitting accurate petitions and maintaining compliance will be essential, especially given the potential for dynamic changes in federal monitoring and enforcement. Morae’s extensive experience in petition drafting and I-9 audits offers invaluable expert guidance and assistance, notably including thorough audits to prepare organizations for both current and anticipated future compliance needs. Morae’s capabilities include robust, flexible technology and process automation to help businesses swiftly meet and adapt to evolving regulatory demands. With Morae, employers are better positioned to navigate the complexities of I-9 regulations and submit precise immigration petitions, mitigate risks, and focus on what truly matters—empowering their people and growing their business.