Increased Enforcement Highlights The Need For Employers To Have Immigration Compliance Programs

by Butler Snow LLP

Butler Snow LLP

This past weekend the United States Immigration and Customs Enforcement (ICE) launched raids in Los Angeles, Atlanta, Chicago, New York, North Carolina, and South Carolina arresting hundreds of undocumented immigrants. While ICE stated that the enforcement action was focused on arresting and deporting convicted felons, the Washington Post reported that many of those arrested had no convictions of any kind. It is no secret that this administration places a high priority on immigration enforcement. The president campaigned with the promise of setting up a new “deportation force” to focus on arresting and deporting undocumented immigrants. On January 25th the president issued an executive order titled “Enhanced Public Safety in the Interior of the United States.” At the same time the president called for ending federal funds for “sanctuary cities,” which do not automatically hand over illegal immigrants who come to the attention of local law enforcement.

In this climate employers should expect ICE to increase its work site enforcement efforts. During the Bush administration ICE regularly conducted work site raids arresting undocumented immigrants and bringing civil and criminal charges against employers. The criminal exposure included personal criminal liability for some hiring managers and business owners. This creates a unique situation for employers. They welcome quality, foreign workers, but must be careful to confirm their immigration status. Although they are not immigration experts, employers are required to verify the identity and employment eligibility of new hires. Employers must recognize that some employees present what appears to be valid work authorization or other documentation making them eligible for employment. This includes employees or staffing companies who obtained H1B Visas using fraudulent information. This can create civil and criminal liability for the employer. However, there is no need to panic. If an employer has a valid and bona fide immigration enforcement compliance program in place they can mitigate the risk of exposure to penalties.

So what type of work site enforcement should employers expect from ICE? Workplace enforcement falls into two categories: 1) overt work site raids to detain and arrest undocumented immigrants and 2) the I-9 audit also known as the “silent raid.”

During the Bush Administration overt work site raids were common-place. The disruption of the raids for employers was immense. The raids temporarily shut down operations as employees were arrested, leaving employers short-handed. Many times the raids resulted in civil and criminal charges for employers who either knew the employees were undocumented or who did not take the necessary steps to verify the employee’s documented status. It is reasonable to expect that with the administration’s enhanced priority on immigration enforcement that this enforcement tactic will once again become commonplace.

In 2009 ICE announced that their number one priority is to target employers who knowingly employ unauthorized foreign nationals. The primary enforcement tool used by ICE is the I-9 audit. These audits look for both technical and intentional violations of immigration laws. As a result of this I-9 effort ICE brought actions against well-known companies. Since these audit units have been fully staffed and already have conducted thousands of I-9 audits of employers it is only reasonable to assume that ICE will continue to focus on employers as well as simply arresting illegal immigrants.

While the I-9 documents employment eligibility, it also serves as an employer’s defense against an allegation of knowledge of an employee’s illegal status. For example, assume an employer hires an individual who entered the U.S. illegally. The individual then obtained very authentic looking yet fake immigration papers, which they presented in order to secure employment, and the employer innocently relied on them. If the employer fails to complete an I-9 for the foreign national and then ICE subsequently determines that the individual is undocumented, the employer will be deemed to have known all along as a result of his failure to complete an I-9. In contrast, if the employer properly completes the I-9 and the individual is later discovered to be without work authorization, the employer has an “affirmative defense.” This does not mean simply completing an I-9 will insulate the employer. ICE also will penalize the employer if they did not take steps to verify the employee’s documentation. In this age of fraudulent documentation an employer cannot simply accept the documentation without verifying its authenticity.

If employers take the time to establish a well-thought out compliance program that shows they take seriously their obligation to comply with immigration laws they will be well insulated against these enforcement actions. A serious compliance program will have the following features:

  1. External I-9 audits by an independent party.
  2. Developing a formal, written compliance program that contains:
    1. Clearly defined hierarchy of supervision, responsibility and accountability for making compliance-related decisions;
    2. Detailed descriptions of the roles of the various individuals involved in compliance decisions;
    3. Procedures to verify employees’ documentation;
    4. Established time frames for completion of specific actions, such as when the I-9 must be completed and by whom;
    5. Direction as to when managerial involvement is required and when inside/outside counsel is appropriate;
    6. Summary of state and federal immigration laws, including document retention requirements, maintenance of lawful immigration status provisions, and summary of penalties;
    7. Clear description of hiring/firing policies and procedures and compliance with anti-discrimination and prohibited practices, including discriminatory documentary practices, citizenship status/national origin discrimination, and retaliation; and
    8. Plan of action for handling and responding to government activity such as ICE audits and raids.
  1. Annual Training for employees and management
  2. Re-verification of employee’s status to insure that their authorization has not expired.
  3. Consider using ICE’s E-Verify system in conjunction with this compliance program, paying attention to those state jurisdictions where E-Verify has become mandatory for many employers.

ICE also has the ICE Mutual Agreement between Government and Employers program (IMAGE) which includes what are considered the twelve best employment practices. However, this program is very intrusive and costly for the employer. Accordingly, very few employers have joined this program.

The challenges facing employers are many, but uncertainty about verifying employment eligibility of foreign workers does not need to be one of them. Through proper planning, diligence and discipline, employers can eliminate the worry about the consequences of a government audit.  The U.S industry relies heavily on foreign labor, and because of this there is a very good possibility that many employers will at some time employ an undocumented worker, albeit unknowingly. Rather than ignoring this issue and allowing it to become like a ticking time bomb, wise employers will confront this head-on with a carefully prepared immigration compliance plan.

It absolutely can be done, and more importantly, in light of the current enforcement environment, it should be done. Never more relevant than now is the old saying “where there’s a will, there’s a way.” The mounting risks of non-compliance are simply too great for employers to continue throwing caution to the wind and assuming their workforces are “ok.” By getting their houses in order now, employers will be in a better position to weather the storm and to succeed in the business they love.

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.

© Butler Snow LLP | Attorney Advertising

Written by:

Butler Snow LLP

Butler Snow LLP 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.