Business Immigration in the Trump Era, Part 1: Worksite Enforcement

by Barley Snyder

(Note: This is the first in a series of new immigration enforcement policies under the Donald Trump administration. The first is on worksite enforcement. Check back in upcoming weeks to read about more topics.)

As we reported previously
, the Trump administration plans to add approximately 10,000 new immigration enforcement officers nationwide in the next few years—increasing the current staffing level by close to 60 percent. This dramatic jump in enforcement personnel makes clear that workplace enforcement will be one of the centerpieces of the Trump administration’s immigration policies. Immigration-related audits and inspections can have a crippling effect on an employer’s operations, and many employers are wondering what they should do to prepare.

Consider these issues:

Understand the types of audits that ICE conducts. The United States Bureau of Immigration and Customs Enforcement (ICE) audits employers in a number of different ways. An employer’s appropriate response will depend upon the type of audit the agency is conducting. Most ICE audits concern an employer’s compliance with the requirements of Form I-9, the government form that all employers must use to verify employees’ identity and authorization to work legally in the United States. If ICE is conducting a routine Form I-9 audit, the employer is entitled by law to three days’ advance notice. Those three days can prove crucial for organizing the Form I-9s and lessening the effect the audit has on overall operations. So employers shouldn’t waive that right, even if the ICE officer presents a standard “Notice of Inspection.” The employer’s right to advance notice is less clear if ICE presents an administrative subpoena. In that situation, the employer should be able to at least negotiate some additional time for its legal counsel to attend the onsite audit, even if the employer doesn’t get the full three days’ notice. In rare cases, ICE will show up with a search warrant demanding immediate access to records and employees. When that occurs, employers don’t have the right to delay, even to have their counsel on site during the inspection. Moreover, interfering with ICE’s execution of a judicial search warrant can have serious consequences, like criminal prosecution for obstruction of justice.

Be prepared for an ICE audit or raid. Employers should be prepared in advance. At a minimum, employers should designate the employees who will interact with ICE in case of a raid or audit and train those employees on the appropriate way to interact with ICE. For example, these employees should be trained to read a judicial warrant to ensure that it’s valid and that ICE’s search complies with the scope authorized in the warrant. Additionally, these employees should understand how to document what ICE inspects and removes during a raid. Employers should also consider engaging immigration counsel to assist with the preparations for ICE audits and raids. Immigration counsel also can assist employers in conducting “self-audits” to identify and fix Form I-9 compliance issues before ICE pays an unexpected visit.

Remember, it’s not just ICE you should worry about. Although ICE raids grab the most headlines, other federal agencies also are authorized to conduct audits related to immigration issues. U.S. Citizenship and Immigration Services is authorized to conduct site visits to ensure employers are living up to representations made in petitions for work visas for foreign national employees. Similarly, the United States Department of Labor conducts routine audits regarding employer’s representations in labor condition applications and labor certifications, documents required for filing certain temporary work visas and some applications for employment-based permanent residency. Likewise, the United States Department of Justice’s Immigrant and Employee Rights Section is authorized to investigate allegations that employers have engaged in unfair documentary practices during the I-9 process, such as requiring that non-U.S. citizens present a permanent resident card, or “green card.”

UP NEXT: Litigating Business Immigration Cases

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Barley Snyder | Attorney Advertising

Written by:

Barley Snyder

Barley Snyder on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.