Excerpted from a BakerHostetler Blog by David Serwer, David Diorio and Timothy Payne
With the new Trump administration in place, immigration enforcement is already ramping up. Employers across various industries – including healthcare and manufacturing – have begun experiencing increased workplace audits, I-9 inspections, and even surprise U.S. Immigration and Customs Enforcement (ICE) enforcement actions (“raids”). With employer-focused raids expected to increase in the coming months, businesses that fail to prepare risk severe consequences, including fines, arrests and operational disruptions.
What’s Happening Now?
The majority of ICE activity in the first weeks of the new administration has targeted individuals with criminal histories. But we have already begun seeing the agency’s focus shift to enforcement actions at businesses and jobsites. In the months ahead, we expect that trend to continue to manifest in several ways.
1. More Worksite Raids
ICE has already conducted raids at worksites in multiple states, targeting businesses that are suspected of hiring unauthorized workers or that fail to maintain proper employment verification records. ICE raids are typically triggered either by tips from members of the public and other agencies (e.g., the Department of Labor) or by information obtained through ICE’s other enforcement activities (e.g., I-9 audits), though under the new administration we may see relaxation of the standards ICE is required to meet before initiating enforcement activity.
2. More I-9 Audits and Investigations
Employers throughout the country have begun receiving Notices of Inspection or subpoenas instructing them to supply ICE with complete I-9 records and various other materials related to their hiring practices and immigration compliance. While more common and less dramatic than ICE raids, I-9 audits have the potential to be just as costly and disruptive to business operations. During President Trump’s first term, ICE set a goal to conduct as many as 15,000 I-9 audits annually (nearly quadruple the historical norm).
3. Increased Coordination Between Agencies
ICE is increasingly collaborating with local law enforcement and other federal agencies, including the Department of Labor and the Department of Justice’s Immigrant and Employee Rights Section, leading to overlapping investigations and more streamlined information-sharing. Multi-agency task forces, empowered by several recent policy changes, have enhanced the government’s ability to locate and arrest immigrants even in sensitive locations such as schools and hospitals.
4. Possible Elimination of DACA and TPS
The Trump administration has signaled an intent to eliminate certain immigration programs that can be used as a basis for work authorization, including Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). The Department of Homeland Security recently announced an end to TPS status for nationals of Venezuela. Other vulnerable populations who could find their work authorization status impacted include asylum applicants and spouses working under H-4, L-2, E or other dependent visa categories. Employers should be prepared for any workforce disruptions caused by these policy changes.
How to Protect Your Business
- Conduct an Immediate I-9 Audit: Review all I-9 forms for errors, missing documents and compliance issues. Engage immigration counsel to conduct a privileged internal audit.
- Train Managers and Staff on ICE Raid Response: Employees must know their rights and responsibilities if ICE arrives. Designate a point of contact, establish protocols and ensure legal counsel is readily available.
- Implement a Formal Enforcement Response Plan: A clear, documented plan should outline how to respond to an ICE visit, including whom to notify and what information to provide.
- Explore Alternative Immigration Options for Workers Affected by Policy Changes: For employees whose work authorization is based on DACA, TPS or other special programs that are at risk of being canceled, evaluate the possibility of pursuing alternative options such as converting to a different nonimmigrant status, an employer-sponsored green card process, or working remotely outside of the United States.
- Engage Legal Counsel Proactively: Having experienced immigration counsel on standby can help address issues before they escalate. To the extent ICE pursues criminal charges related to alleged immigration violations, it may be necessary to retain experienced white collar criminal counsel as well.
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