On Jan. 25, 2017, President Donald J. Trump signed an Executive Order titled “Enhancing Public Safety in the Interior of the United States.” This order lays out the president’s plan for enforcing immigration laws, including, among other initiatives, increasing and expediting the deportation of removable aliens from the United States. Specifically, the order prioritizes for immediate deportation foreign nationals who have committed crimes, as well as those who are suspected of committing crimes and those whom law enforcement deems are a threat to national security. This executive order broadens the class of individuals considered to be a priority for removal. Therefore, there will likely be an increase in the scope and number of immigration raids.
What ICE Raids Mean for U.S. Employers
Last week ICE conducted a number of raids in cities across the U.S. According to Secretary of Homeland Security John Kelly, the raids were a “series of targeted enforcements” focused on “public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have violated [U.S.] immigration laws.” Nonetheless, ICE’s focus could shift to include other foreign nationals or employers at any time. Historically, immigration enforcement under Republican administrations has focused on worksite raids, while under Democratic administrations the focus has been more individualized. If this tradition continues, we anticipate an increase in worksite visits and I-9 audits in the coming years. Below are some ways U.S. employers can prepare for a more stringent immigration environment:
- Ensure compliance with Form I-9 requirements.
Employers are required to verify employees’ U.S. work authorization and identity on Form I-9. Companies should regularly self-audit I-9 forms to ensure proper procedures are being followed. Self-auditing includes ensuring all required fields were completed; verifying that the U.S. work authorization document provided in Section 2 has not expired; and re-verifying U.S. work authorization or other updated data in Section 3 when applicable.
Further, U.S. employers with foreign national employees should have a reliable system in place to track when foreign national employees’ U.S. work authorization is expiring and take steps to renew expiring immigration documents in a timely manner.
- Become familiar with Federal and state E-Verify requirements.
E-Verify is an Internet-based system that allows employers to confirm their employees’ U.S work authorization. Generally, E-Verify is a voluntary program; but, in some states and for certain types of employers, enrollment in E-Verify is mandatory. Companies should determine whether they are required to enroll in E-Verify and, if they are, ensure strict compliance with the program.
- Be prepared for ICE site visits.
Coordinate with your immigration counsel to develop an action plan for handling ICE site visits. Consider instructing your receptionist on how to handle a visit by an ICE officer and provide him or her with contact information for the company representative who will liaise with the ICE officer. It is important to have all required immigration documents, including Labor Condition Application Public Access Files and I-9 Forms, in proper order in a location that is easily accessible upon short notice.
- Develop a contingency plan.
In today’s heightened enforcement environment where a number of foreign national employees may be affected directly or indirectly by ICE raids, employers should develop a plan in the event key personnel are unable to perform their job duties. Cross-training other employees, creating relationships with staffing companies, using automation, and hiring backup workers are some ways companies can prepare in the event their workforce is affected by immigration raids.
We will continue to update our blog as more details about ICE’s enforcement activities emerge.