Undocumented Workers: Are Employers Legally Protected?

On January 20, 2025, President Donald Trump’s second term officially began. Promising to overhaul policies in areas such as immigration, energy, the environment, and tariffs, Trump signed 26 executive orders on his first day in office, signaling a strong commitment to reform. This number is significantly higher than the nine executive orders signed by President Biden on his first day in office, highlighting Trump’s urgency in implementing his agenda. Among the key actions taken, Trump declared a national emergency at the southern border, directed federal funds to build a border wall, and authorized the deployment of the military to support immigration system reforms. These actions extend beyond the issue of undocumented immigrants and have captured the attention and concern of businesses across various sectors, including manufacturing, wholesale, and retail industries that rely heavily on foreign workers.

What is an executive order?

* When an executive order conflicts with a law, the law takes precedence, and when a law conflicts with the Constitution, the Constitution takes precedence.

Of the 26 executive orders issued on President Trump’s inauguration day, eight were related to immigration and immigration enforcement. The following executive orders provide the legal basis for increased enforcement against undocumented immigrants.
In his executive order, “PROTECTING THE AMERICAN PEOPLE AGAINST INVASION,” President Trump characterized undocumented immigration as a threat to national security and public safety, as well as a burden on taxpayers, and announced his intention to crack down on it. Key highlights of this order include: immediate deportation of undocumented immigrants, expanding the activities of the Department of Homeland Security, building detention centers for those awaiting deportation, imposing civil penalties on undocumented immigrants, and ending federal funding for “sanctuary jurisdictions.” (Source: White House)
While the president’s first days in office have been filled with strong directives, it remains to be seen how much change the average citizen will feel. This is because executive orders are not binding if they conflict with existing law. In fact, the most high-profile recent order to repeal birthright citizenship is currently being blocked by a federal court for violating the U.S. Constitution. Legal challenges to the constitutionality of other executive orders, such as the suspension of federal funding for sanctuary jurisdictions, are also expected. In other words, if the president’s strong message is to be followed through with tougher enforcement penalties for business owners, it must be based on a sound legal foundation.
Legal grounds for penalizing employers of undocumented workers

Unlike some of the current controversial executive orders, the laws governing enforcement against undocumented immigrants and their employers are clearly outlined in the United States Code. The following laws set forth specific standards that businesses must comply with:
 Prohibition on Unlawful Hiring: Prohibits hiring, recruiting, or referring for a fee any unauthorized alien for employment in the United States (8 U.S.C. § 1324a(a)(1)(A)).
 Prohibition on Continuing Employment: Prohibits continuing to employ an alien, knowing that the individual is an unauthorized alien with respect to such employment (§ 1324a(2)).
 Penalties: Ranging from $250 to $10,000 per unauthorized alien per violation, with possible criminal penalties for repeat violations (§ 1324a(f)).
Criminal Penalties: Fines of up to $3,000 per unauthorized worker and up to six months in prison if a pattern of violations is established.
● Additional Administrative Penalties: Possible visa revocation and deportation of the employer.

What Does This Actually Mean for business owners?

The new Trump administration is determined to crack down on and penalize undocumented immigrants. Penalties range from civil and criminal to administrative, creating significant challenges for businesses in the manufacturing, wholesale, and retail industries, which are exposed to immigration and labor law risks.
Given that this is President Trump’s second term, we can draw insights from his previous policies. While the current administration features new key cabinet members, President Trump’s approach to immigration enforcement remains largely consistent with his first term. During his first term, after his victory over the Democrats, he called for stricter immigration enforcement and penalties, accompanied by a significant reallocation of personnel and resources. Examining the data from Trump’s first term offers a preview of what we can expect from this administration.
According to Syracuse University’s TRAC study, during Trump’s first term, from April 2018 to March 2019, despite increased enforcement of undocumented immigrant employment, there were few employer penalties. ICE prosecuted only seven cases involving unauthorized employment during that period, and just 11 individuals received criminal penalties. Not a single company was criminally prosecuted, even though the law allows for both individuals and companies to face prosecution.
These numbers are not significantly different from the annual average since 1986, when ICE was authorized to enforce illegal employment laws. Over the past 40 years, it has been extremely rare for employers to be criminally penalized or jailed. In contrast, during the same period, ICE prosecuted 35,000 individuals for illegal reentry and 5,000 for aiding and abetting this offense. This indicates that while enforcement against undocumented immigrants has increased, enforcement against employers of undocumented workers has remained relatively lenient. As a result, while the Trump administration has certainly intensified enforcement and penalties against undocumented immigrants, its actions against employees employing undocumented workers have not been statistically different from those of previous administrations.
Actions business owners can take

The new Trump administration may not bring significant changes for businesses that operate with the usual care and attention. However, given the government’s intent to crack down harder, it is essential for all businesses to review their compliance practices. In addition to checking basic procedures for reviewing I-9 forms and verifying relevant supporting documentation, it is advisable to seek legal counsel in advance of a potential government raid or audit. It is also crucial to ensure compliance with not only immigration laws but also other relevant laws and regulations. For example, additional instances of using false identification or fraudulent use of real identification (18 U.S.C. § 1546(b)) can be punishable as a felony if uncovered during an immigration investigation. Hiring an undocumented person is one issue, but condoning the submission of false or falsified identification is quite another. The latter can lead to criminal penalties and applies not only to undocumented immigrants but also to legal residents whose visas do not authorize them to work.

Given the potential for these issues to arise when a business submits Forms I-9, special attention is required. Businesses should ensure that all required documents, including the I-9, are complete and submitted on time. It is also advisable to train employees on the serious civil and criminal penalties for falsifying or providing false information on their identification documents and to maintain records of this training. This proactive approach will help prepare your business for any future crackdowns or inspections.