Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
As it signaled in late 2017,1 the Homeland Security Investigations (HSI, the U.S. Immigration and Customs Enforcement’s investigative arm) began 2018 with an increased emphasis on targeting employers and unauthorized employees through worksite enforcement action. Employers are now seeing the reported orders come to fruition and should expect more actions going forward.2
On January 10, 2018, HSI targeted 98 retail operations in nationwide worksite raids occurring in 17 states and Washington D.C. Such activity will likely be the first of many future worksite enforcement actions under the current administration. ICE Director Thomas Homan stated: “Today’s actions send a strong message to U.S. businesses that hire and employ an illegal workforce: ICE will enforce the law, and if you are found to be breaking the law, you will be held accountable.”3
These new worksite enforcement actions appear to be a combination of both I-9 audits and arrest of unlawful workers and employers knowingly hiring these workers. Under the Immigration and Nationality Act, employers are required to maintain Form I-9 for all employees hired after November 6, 1986. Employers are required to produce the I-9s within three days of receiving a notice of inspection. Failure to properly maintain I-9s may result in fines, and employers that knowingly employ individuals who are unauthorized face stiffer penalties including increased fines and potential criminal liability. For example, a first I-9 paperwork violation may result in fines of anywhere between $220 and $2,191 for each deficient I-9; a first offense of hiring unauthorized workers can result in fines of between $548 and $4,384.4
As we previously reported, worksite raids bring many serious concerns for employers, including: workforce shortages, public-relations issues, a decrease in employee morale, and liability concerns. With the administration’s enhanced focus on worksite enforcement, now is the time to prepare for worksite raids. Employers should consider: (1) designating points-of-contact if an ICE audit occurs; (2) familiarizing themselves with the limits of ICE warrants; (3) preparing communications for both employees and the general public to address morale and public-relations concerns; (4) creating a uniform process to manage the public relations aspects of ICE intervention; and (5) dedicating time to ensuring Form I-9 compliance.
1 See Jorge R. Lopez, Sean M. McCrory, and Shireen Judeh, Employers Should Prepare Now for Increased ICE Enforcement, Littler ASAP (Nov. 8, 2017).
2 In October 2017, ICE Director Tom Homan reportedly ordered an increase of worksite enforcement action by “four to five times.” See Tal Kopan, "ICE chief pledges quadrupling or more of workplace crackdowns," CNN (Oct. 17, 2017); http://www.cnn.com/2017/10/17/politics/ice-crackdown-workplaces/index.html; a video of Homan's remarks can be viewed here: https://www.c-span.org/video/?435827-1/acting-ice-director-discusses-immigration-enforcement.
3 Press Release, U.S. Immigration and Customs Enforcement (Jan. 10, 2018).
4 Federal Register, Vol. 82, No. 22, Feb. 3, 2017.