President-elect Trump’s announced (and rumored) Cabinet member selections confirm that immigration enforcement will be a top priority from day one. With less than two months before inauguration day, US employers should take action now to ensure they are compliant with immigration regulations, are prepared for worksite ICE (Immigration & Customs Enforcement) or DOJ (Department of Justice) raids or enforcement activity and are ready to respond to government investigations or employee complaints regarding the employment of foreign workers.
We recommend the following three steps:
1. Conduct an Internal I-9 Audit
We expect to see a significant rise in worksite inspection and I-9 audits from the incoming administration. All employers are required to verify the work authorization of all employees in the United States by completing and maintaining the Form I-9. Employers should conduct internal I-9 audits every 2-3 years to identify potential liability and make necessary corrections; conducting an internal audit with counsel is a helpful tool to protect the audit under attorney/client privilege. Immediate steps employers can take include:
- Conduct an internal I-9 audit if one has not been completed in the past 3 years.
- Review current protocols and conduct internal training to ensure a consistent and complaint work verification procedure and prevent future errors.
- Review electronic platforms to ensure they are complaint with I-9 regulations and audit ready.
2. Be Prepared for Worksite Enforcement
With an expected increase in worksite enforcement and/or raids, employers should create and maintain established protocols for meeting with officials from the DOJ or ICE, responding to subpoenas, and/or requests to interview employees. Immediate steps employers can take include:
- Establish a process flow for responding to government visits and/or information/documentation requests.
- Train HR and receptionists regarding how to react and respond if DOJ or ICE make an in-person enforcement visit, including tabletop practice exercises.
3. Review PERM Protocol
Under the prior Trump administration, the DOJ enforced immigration-based discrimination laws to protect U.S. workers, including a focus on how employers conduct labor market tests when sponsoring foreign workers for permanent residence. We expect an increase in DOJ investigations relating to PERM practices and an increase in DOL audits for PERM applications. Immediate steps employers can take include:
- Review PERM advertising methodology to ensure consistency with normal recruitment practices.
- Ensure consistent protocols for labor market tests reviews during the advertising period.
For further information, please refer to the following resources: