7.17.19

Although the Trump Administration’s policy of conducting raids to round up undocumented individuals has been in the news lately, employers should understand that the Administration has also vigorously enforced immigration laws as applied to the workplace.

For example, in fiscal year 2017, U.S. Immigration and Customs Enforcement opened 1,691 worksite investigations. In FY 2018, that number increased to 6,848. In FY 2017, ICE initiated 1,360 I-9 audits. In FY 2018, it initiated 5,981 audits. In FY 2017, ICE made 139 criminal worksite-related arrests and 172 administrative worksite-related requests. In FY 2018, those numbers ballooned to 779 and 1,525, respectively.

In all, ICE enforcement activity in workplaces in FY 2018 surged by 300 to 750 percent as compared with FY 2017.

In January 2018, we issued a bulletin that included suggestions on how to prepare for an ICE raid. That bulletin was triggered by the ICE inspection of nearly 100 7-Eleven stores across the country that led to the arrest of 21 employees for being illegally present in the United States. The 7-Eleven raids and others were consistent with the Trump Administration’s announcement in October 2017 of its intention to significantly increase enforcement of the immigration laws in workplaces.

In light of the more recent enforcement activity, we are reissuing our January 2018 bulletin with some updates.

What does the Administration policy mean for employers?

In this new enforcement climate, employers must be sure to meet their obligations under the Immigration Reform and Control Act of 1986, which imposes civil penalties for violations and, potentially, criminal penalties for engaging in a “pattern or practice” of hiring, recruiting or referring for a fee individuals who are not authorized to work in the United States.

Specifically, under the IRCA, an employer is prohibited

  1. from hiring and employing and continuing to employ an individual for employment in the United States, knowing that the individual is not authorized to work here.
  1. from hiring any individual, including a U.S. citizen, for employment in the United States without verifying his or her identity and employment authorization on Form I-9.

For violations of subsection a, civil penalties could reach $22,927 for each person illegally employed; and for violations of subsection b, civil penalties could reach $2,292 for each I-9 Form containing substantive violations or uncorrected technical violations.

As already noted, there are criminal penalties under the IRCA for engaging in a “pattern or practice” of hiring, recruiting or referring for a fee individuals who are not authorized to work in the United States. The best advice is not to knowingly hire or to continue to employ even one unauthorized alien. Separate penalties apply to a “pattern or practice” violation – fines of not more than $3,000 for each unauthorized alien with respect to whom such a violation occurs, or up to six months in prison for the entire pattern or practice, or both.

For more egregious criminal conduct, such as was committed by the 7-Eleven franchisee who was sentenced in April 2015, immigration law provides other more serious criminal penalties, including significant jail time, fines, and property forfeitures from the gains of the illegal behavior. An employer facing such charges would need the counsel not only of an immigration lawyer, but also of a criminal lawyer.

Preparing for an immigration raid or audit

The best strategy for employers is to have their houses in order before ICE shows up unexpectedly. The following steps are recommended:

Training. First, employers should be sure that their Human Resources personnel and managers are trained in the employer’s obligations under the IRCA.

Self-audits. Employers should conduct periodic self-audits of their I-9s and practices, and review any deficiencies or corrective actions with immigration counsel. Particular attention should be given to cases where concerns are raised about the legal status of the employee despite the I-9 documents presented by the employee. Those concerns should be reviewed promptly with counsel once they arise.

Have a procedure in place. Employers should prepare themselves by having a procedure to follow if and when ICE agents arrive. The procedure should identify the employer’s lead contact with ICE. Front desk personnel need to be trained about whom to contact, and they should know not to provide any other information to ICE. Immigration counsel should be notified immediately, or as soon as possible.

A distinction should be drawn between an I-9 audit by ICE (in which the employer has an obligation to provide the requested documents) and an ICE visit with an arrest warrant. If ICE arrives with an arrest warrant, immigration counsel needs to be contacted immediately to advise whether the warrant actually authorizes ICE to enter the facility to make the arrest. A civil arrest warrant (one issued by ICE and not a court) generally does not allow ICE to enter the facility to make an arrest. However, ICE can enter public areas.

Employers also must not take any action to hide a person, or to assist a person in avoiding an arrest by ICE unless specifically advised to do so by counsel.

Know where your I-9s are maintained. Finally, employers at each facility must know where their I-9 documents are maintained. Although employers have three business days to provide the I-9s, that time can pass quickly if the documents cannot be located or if the I-9s are in an off-site location. The employer also may choose to provide the documents when ICE arrives as a way to provide a positive connection with ICE.

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