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How Can Small Businesses Comply with Increased Immigration Enforcement?

Now is the time to be taking a hard look at whether your employment verification processes are up to par.

Tuesday, October 31, 2017
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It seems the potential for increased immigration enforcement is on business leaders' minds these days. Since the new administration came into power at the end of January, quite a bit has happened to back up President Trump's tough talk on immigration enforcement. The administration has issued multiple executive orders aimed at tougher enforcement of our immigration laws, the Department of Homeland Security has sought to reinvigorate a program that deputizes local law enforcement to assist immigration officers, and the administration is doing a top-to-bottom review of temporary worker programs looking for fraud and abuse. Meanwhile, officers from Immigration and Customs Enforcement have stepped up community raids, there is a push at the federal and state level to end or penalize so-called "sanctuary cities,"  the Deferred Action for Childhood Arrivals program is being phased out, and there continues to be talk of expanding E-Verify to all employers. Finally, ICE Acting Director Thomas Homan recently stated that he has ordered Homeland Security Investigations to increase worksite-enforcement investigations by four to five times starting this fall, focusing not only on the prosecution of employers that hire undocumented workers but also detaining and deporting undocumented workers from the United States. Here's the bottom line: If you're at all unsure of whether your employment verification processes are doing the job of screening out people who are ineligible to work legally in this country, now's the time to take a hard look and start making any changes or corrections as necessary.

Preparing for Increased Immigration Enforcement

How can businesses prepare for increased immigration enforcement?  From a compliance perspective, start by making sure your Employment Eligibility Verification forms (the "Form I-9") are in order.

First, review your recruiting and hiring practices to ensure they consider immigration compliance from beginning to end. Train around compliance and compliance gaps. For instance, one compliance gap may be around the hiring of remote employees and proper completion of the Form I-9. Another may be that the Form I-9 isn't fully completed or not completed within three business days of hire. And finally, another gap may be what is called over-documentation, meaning that as an employer you require all or certain new hires to present additional documents when completing section 2 of the form. This action can lead to claims of discrimination, which is enforced by the Department of Justice's Immigrant and Employee Rights Section.

Second, consider an internal or self-audit of your company's Forms I-9 using outside legal counsel to ensure that (a) you have a Form I-9 for all current employees and (b) that they are fully and properly completed. Certain deficiencies can be corrected but they must be done properly so as to not compound the problem.

Third, have written policies and procedures in place regarding the company's Form I-9 completion as well as the company’s use of E-Verify. Maintain the Form I-9 and supporting documents separately from other personnel records and separate current from terminated employees. The law allows employers to destroy the Form I-9 and supporting documents once an employee has been terminated, and after the requisite amount of time has passed. 

Immigration law requires that all businesses, regardless of size, complete the Form I-9 for all new employees in a non-discriminatory manner and within three business days of hire. Furthermore, certain businesses may need to participate in E-Verify, which is the electronic employment eligibility program run by the Department of Homeland Security's U.S. Citizenship and Immigration Services that verifies the employment eligibility of employees. Participation in E-Verify is voluntary unless a business is a federal contractor and the contract requires participation in the program, or if the business is in a state that mandates use of the E-Verify and ties it to issuance or renewal of a business license. States where E-Verify is mandatory include Arizona, Georgia, the Carolinas and Alabama.

Trends

While immigration practitioners such as myself have heard that worksite enforcement will increase starting in the fall, what does that mean and where does immigration enforcement stand today?

Worksite enforcement is when agents from the Department of Homeland Security, specifically from ICE, present themselves at a workplace and issue a Notice of Inspection requiring a business to turn over their Forms I-9. As with any government investigation it is important to have a plan in place to react to the presence of government officials seeking to audit or inspect the company. With Homeland Security agents, unless it is a raid, they will generally issue a Notice of Inspection that must be signed by the business to acknowledge receipt. Sometimes they will begin to ask questions, which may seem innocent enough, but are likely intended to gather additional facts. Have a plan in place when federal, state or local inspectors appear to acknowledge their presence, have them wait in a conference room, do not waive any rights, and call management first and your attorney second. With a Notice of Inspection, once a business signs this document it has three business days to present its Forms I-9 for inspection by ICE.

What does the current immigration enforcement trend look like? 

With respect to personnel, Homeland Security Investigations announced during a May 2017 liaison meeting with the American Immigration Lawyers Association that they have 6,000 enforcement officers and 6,000 special agents and they are working on a hiring plan to add the additional 10,000 officers and agents mandated by the President's Executive Orders. Their worksite enforcement strategy and verification related to Form I-9 inspections remains focused primarily on businesses in national security and critical infrastructure industries and sectors. Their target for FY 2017 is approximately 1,200 Form I-9 inspections.

Regarding civil penalties assessed for non-compliance with the Form I-9 requirements and the employment of unauthorized workers, according to the Department of Homeland Security the trend over the years has been going up. Having said that, it is also important to keep the numbers in perspective:

FY 2013 – Immigration and Customs Enforcement served 3,127 Notices of Inspection and 637 Final Orders, totaling $15,808,365.00 in administrative fines (of which they collected about $9 million)

FY2014 – Immigration and Customs Enforcement served 1,320 Notices of Inspection and issued 637 Final Orders, totaling $16,206,022 in administrative fines (of which they collected a little over $7 million)

In conclusion, immigration practitioners are gearing up for increased enforcement actions by Homeland Security in the coming months investigating employers' compliance with the Form I-9 requirements, including whether they are hiring or maintaining undocumented workers as part of their workforce.

Montserrat Miller is a partner at Arnall Golden Gregory LLP, where she advises organizations on employee onboarding issues such as employment background screening and compliance with immigration law requirements when hiring employees. She can be reached at montserrat.miller@agg.com.

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