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.
Increased immigration enforcement and a reduction in illegal entry into the United States remain among the Trump administration's highest priorities. Notably, Acting ICE Director Thomas Homan has reportedly ordered Homeland Security Investigations (ICE’s investigative arm) to increase its worksite enforcement actions by "four or five times" in the new fiscal year.1 In the past, ICE conducted worksite raids to arrest employees who lacked work authorization in the United States. While worksite raids have not yet occurred under this administration, they are expected to return soon, this time targeting aggressively both employers and employees.
Under the previous administration, ICE focused resources to an unprecedented degree on Form I-9 audits to ensure employers complied with technical Form I-9 requirements and that employees had work authorization. While the previous administration focused almost exclusively on employers, the new administration is likely to target both parties: employers that—even unknowingly—employ individuals without work authorization, and employees who lack work authorization.
I-9 audits seemed to be down significantly for the 2017 fiscal year, which ended September 30, 2017. Through June 24, 2017, there were only 420 I-9 audits, compared with 1,279 for all of fiscal year 2016. I-9 audits hit a peak in the 2013 fiscal year, numbering 3,127. However, the numbers should not lessen employer concern over increased worksite enforcement. The Trump administration has already been actively implementing measures to increase ICE’s ability to conduct I-9 audits. President Trump’s “Buy American, Hire American” Executive Order issued earlier this year directed the Secretary of State, Secretary of Labor, and Attorney General to implement measures to protect the interests of U.S. workers, including preventing fraud and abuse. In a previous executive order, “Enhancing Public Safety in the Interior of the United States,” the Department of Homeland Security Secretary called for hiring an additional 10,000 ICE agents to focus on enforcement measures outlined in the Order.
Employers should be aware of the increase in fines associated with I-9 deficiencies. For example, the range of fines for a first I-9 paperwork violation was raised in 2017 to anywhere between $220 and $2,191 for each deficient I-9.2 Fines were also increased for hiring unauthorized workers to between $548 and $4,384 per unauthorized worker for a first offense.3 Just this past year we have noticed an increase in fines, some notably in the millions of dollars.
One method ICE may use to target both employers and employees is a Form I-9 audit followed by a worksite raid. During the Form I-9 process, ICE, after reviewing an employer’s Form I-9s, will issue an advisory known as a “Notice of Suspect Documents.” The Notice of Suspect Documents informs an employer it is employing individuals who likely lack work authorization, and instructs employers to terminate employees who lack work authorization within a reasonable amount of time—usually understood as 10 days. Employers should prepare for a worksite ICE raid to accompany a “Notice of Suspect Documents” to fulfill the administration’s goal to (1) deter employers from employing individuals without work authorization, and (2) prevent employees without work authorization from obtaining employment in the United States.
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; and (4) creating a uniform process to manage the public relations aspects of ICE intervention and (5) dedicating time to ensuring Form I-9 compliance.
Littler’s Global Mobility & Immigration team is ready to assist employers to prepare for the administration’s new focus.
1 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.
2 Federal Register, Vol. 82, No. 22, Feb. 3, 2017.