President Trump has taken quick action to ramp up immigration enforcement in his first days in office. While Trump’s early focus on deportations and border security is not new, the swift and aggressive enforcement approach represents a significant change as compared to prior administrations. These actions have led to arrests and heightened concerns among employers and employees alike.
What do employers need to know?
Since Trump’s inauguration, there has been a significant increase in targeted enforcement measures against individuals present in the United States who are not U.S. citizens who have a criminal record, and also recent arrivals to the United States who do not hold lawful immigration status. The vast majority of immigration enforcement since January 20 has occurred in private residences and public spaces, though there have been immigration enforcement actions at worksites. There have not been reports of wide-scale worksite raids yet, though the focus may shift to worksite inspections in the next wave of enforcement activities.
Worksite enforcement inspections can take a variety of shapes. In particular, employers should be prepared for the following:
- Fraud audits in relation to employer-sponsored visa holders;
- Administrative I-9 audits;
- Arrests of targeted individuals; or
- Raids based on suspicion of undocumented workers at worksite facility.
What is different about the enforcement climate now?
While the enforcement of immigration laws against individuals with a criminal history or recent arrivals without lawful status is not a new practice, there are several notable changes to historical enforcement norms:
- The volume and publicized nature of enforcement actions;
- The authorization of several federal law enforcement agencies to enforce immigration laws, widening the scope of federal actors who may be involved in immigration raids (e.g., FBI or DEA);
- The “city-by-city” approach to large enforcement actions being taken by ICE, in addition to continued enforcement across the country.
How can employers prepare?
Given that a shift in enforcement from individuals to worksites remains possible, employers should take the following steps now to be prepared for enforcement actions:
- Review Existing Employment Eligibility Verification Practices
- Conduct an internal I-9 audit to ensure compliance with employment eligibility requirements. Doing so with counsel is a helpful tool to protect the audit under attorney/client privilege.
- Review E-Verify participation to ensure compliance with federal and state law.
- Be Prepared for Unannounced Site Visits
- Create a simple process flow for reception/security at all worksites and conduct training to ensure: (i) legal counsel is contacted immediately upon arrival of federal law enforcement; and (ii) a copy of any government-issued notice is requested and sent to legal counsel. We recommend that onsite staff should not protest or otherwise obstruct a government investigation.
- Develop Communications Plans to Address Employee Concerns and External Inquiries
- Host Town Halls with concerned employees or managers about their rights and responsibilities in the event of a raid.
- Develop a plan for managing media coverage in the event of a worksite investigation.
For further information, please refer to the following resources:
- Trump Back in Office: What Employers Should Expect Regarding Immigration
- US Immigration Enforcement Defense – What to do when the government is at HR’s door
- Looking Ahead: Business Impacts of a New US Administration
- The Pre-Inauguration Playbook: Steps US Employers Should Take to Ensure Immigration Compliance as We Enter a New Era of Enforcement