With the transition to the Trump administration, the future of immigration enforcement actions is a top issue for employers of non-citizen workers.  A good deal of attention has been focused on enforcement actions directed at blue-collar labor, but there are indications that highly skilled non-citizens may also be impacted by forthcoming policy changes. 

Immigration and Customs Enforcement ("ICE") is the investigative branch of the Department of Homeland Security ("DHS") charged with enforcing immigration and customs laws.  One method of enforcement at ICE's disposal is the worksite audit, sometimes known as an "ICE raid."  From 2013 to the end of the Obama presidency, worksite immigration enforcement activity dropped precipitously in favor of offsite review of employers' documentation through a Notice of Inspection ("NOI") process.

On January 25, 2017, President Trump executed an Executive order titled "Enhancing Public Safety in the Interior of the United States."  Media reports focused on this order's directives to begin construction of a wall on the United States-Mexico border and to withhold federal funding from so-called "sanctuary cities."  Of particular note for employers, however, the order also commands increased detention and deportation efforts, with a stated priority of deporting unauthorized immigrants convicted of or charged with "any" criminal offense, or who have "committed acts that constitute a chargeable offense."  The broad language of this order appears to include immigration offenses such as unlawful entry as well as minor offenses like traffic violations.

Certain portions of the January 25 order are already subject to legal challenge, and other portions require Congress to allocate funding before any action can be taken.  However, given the heightened attention on immigration enforcement, employers with foreign-born employees are well-advised to plan their response should they face an audit or worksite enforcement action as a result of this Executive order or future orders or legislation.  Below are recommendations for business owners and their non-citizen employees.

For businesses:

• Best practices to adopt before any enforcement action include:
  • Establish clear and consistently-applied policies on avoiding hiring unauthorized employees and terminating employees found to lack authorization, while avoiding national origin and citizenship discrimination.
  • Ensure systems are in place to conduct the I-9 process correctly for all new employees.  Create a system for organizing and storing all employee I-9 forms.  Supporting documentation for the I-9s can help bolster a defense of good faith verification efforts, but inadequate or incomplete documentation may actually harm such a defense.  I-9s should be stored separately from other personnel information.
  • Some states require the use of E-Verify, including for certain North Carolina companies.  Employers that are not required to use E-Verify should consider using it for new hires.  Understand, however, that participation does not create a safe harbor against enforcement actions and penalties, may increase scrutiny, and may waive Fourth Amendment protections against search and seizure.
  • Designate one individual to talk to DHS or ICE personnel on behalf of the company.
• Should a worksite enforcement action occur:
  • Be polite, but understand that employers and employees are not required to answer the agents' questions.
  • If an ICE agent appears with a search warrant or subpoena, the employer must allow ICE to conduct its search in accordance with the scope described in the document.
  • If an ICE agent appears without a warrant or subpoena, you have the right to refuse to permit the agent to enter the premises or conduct a search.  The agent cannot demand immediate production of I-9 forms.
    • However, ICE may demand production of I-9 forms with three days' notice.
  • Never allow removal of the original I-9 forms from the workplace, and retain an inventory or copies of any documents given to the agents.
  • Document all facts about any workplace enforcement action, including:
    • The names and badge numbers of ICE agents.
    • Any actions that ICE agents take.
    • Answers to any questions posed by ICE agents.
    • Names and birthdates of any detained employees.
  • Immediately contact counsel for assistance.

For employees:

• Individuals should take the following preparations now, before an emergency:
  • Obtain a passport from country of origin for each family member.
  • Leave their alien registration number ("A" number) with friends or family members.
  • Prepare a power of attorney for a trusted friend or family member to manage bank accounts, bills, and property.
  • For individuals with minor children, prepare a document authorizing another adult to care for the children if necessary.
• Should a worksite enforcement action commence:
  • Unauthorized workers may be subject to arrest and detention during a worksite enforcement action.
  • Individuals have the right to remain silent.
  • Individuals should not sign any documents without speaking with a lawyer first.
  • Detained individuals have the right to a lawyer, but (unlike in criminal proceedings) they have to find a lawyer and pay for him or her on their own.
  • Individuals should not lie or give false information and should not carry false documents.

Navigating immigration enforcement actions requires care.  Under Section 274A of the Immigration and Nationality Act, penalties for uncorrected technical violations, such as failing to produce I-9 forms on request, range from $110 to $1100 per violation.  Penalties for knowingly hiring or continuing to employ unauthorized workers range from $375 to $16,000 per violation.  In assessing the appropriate penalty, ICE considers: (1) the size of the business, (2) good faith effort to comply, (3) the seriousness of the violation, (4) whether the violation involved unauthorized workers, and (5) the company's history of previous violations.  Employers may also be subject to criminal prosecution or debarment from federal programs. 

Employers with non-citizen workers should continue to pay close attention to developments in immigration policies in order to ensure business continuity and avoid negative publicity.