With the new Trump administration, policy changes around immigration enforcement have increased momentum. All employers are expected to manage state and federal regulations (including the Immigration Reform and Control Act) which makes it unlawful to:
- hire, recruit, or refer for employment anyone unauthorized to work in the United States, or
- fail to verify their work status, or
- continue employing someone knowing they are not authorized.
Employers are also required to confirm legal status of employees through Form I-9.
At the same time, businesses must avoid practices that would potentially expose them to discrimination suits. As enforcement efforts and raids intensify, employers should take proactive steps to prepare for shifts in the regulatory landscape while ensuring compliance with all employer laws.
5 Steps Employers Can Take to Prepare for New Immigration Policies
Employers can take the following five steps to help protect themselves from penalties and disruptions in a period of increased immigration scrutiny:
1. Understand the Consequences of Non-Compliance
Employers that do not comply with immigration regulations may face significant penalties, including:
- Financial Penalties. Violations of I-9 can result in fines up to $2,861 per form, and hiring undocumented employees knowingly can result in penalties of $5,724 for first-time offenders or $28,619 per undocumented employee for repeat offenders. Owners and managers may be assessed large fines for crimes such as “harboring” or concealing undocumented workers.
- Criminal Charges and Seizure of Assets. Owners and managers may face jail time for crimes such as “harboring” or concealing undocumented workers. Under the Criminal Forfeiture statute, juries may also seize all assets used in the commission of the crime as well as all proceeds of the crime.
- Loss of Federal Contracts. Violations can exempt businesses from competing for government contracts.
- Operational Challenges. ICE raids can disrupt business operations, damage employee morale, and create PR issues, especially in industries that rely heavily on immigrant labor.
2. Minimize the Risk of ICE Raids
Proactive measures can help businesses reduce the likelihood of an ICE raid. Here are some important steps that can minimize the risk:
- Ensure I-9 Compliance. Make sure that all employees hired after November 6, 1986 have a properly completed Form I-9 on file.
- Conduct Internal Audits. Work with HR to regularly review I-9 records for errors and omissions, and correct any discrepancies in a timely manner.
- Use E-Verify. E-Verify is required for some employers in some states, and it can demonstrate that a company performed due diligence in confirming work eligibility for its employees.
- Train Staff. Train HR and managers on I-9 processes, identifying issues with employment documents, and taking appropriate action if they suspect that an employee may lack proper work authorization.
- Develop a Response Plan. Create a trained “raid team” to handle any potential ICE visits, contact immigration and employment counsel, and keep a legal record of all actions taken by ICE agents.
3. Prepare for ICE Audits
If your business receives a Notice of Inspection (NOS), follow these steps to protect yourself:
- Contact Legal Counsel and HR Team. Your HR team can help you audit I-9 forms. Your legal team can negotiate a short extension to gather records, and help you make allowable corrections to reduce potential penalties.
- Gather Required Documents. Keep your employment records well organized and accurate so it is easy to provide any requested documents, including I-9 forms, payroll records, 1099s, and any other materials that ICE may ask for such as agreements with staffing agencies.
- Correct Any Errors. After the ICE audit is complete, which can take weeks to years, you will be notified of full compliance or any violations. If minor technical or procedural violations were found, you will be allowed 10 days to fix them. For more serious findings, seek legal advice to help mitigate fines and penalties.
4. Know How to Handle ICE Raids
Raids are a huge disruption for businesses, and they can result in immediate detention of illegal workers. If your company is faced with a raid, follow these steps:
- Verify the Warrant. Ensure the search warrant is valid, checking to see that it was signed by a judge. You should also contact legal counsel immediately but understand that ICE will not wait for your attorney to arrive to start their search.
- Monitor Activity Without Interfering. Assign a representative to observe and document all ICE actions and track all items and information taken by ICE agents without interfering with their investigation. Immediately send this information to legal counsel.
- Avoid Obstructing the Investigation. Do not hide employees, destroy documents, or provide false information to agents. Employees should be allowed to speak with ICE agents, though they are entitled to wait until legal counsel is present.
- Manage Public Relations. Consider issuing a statement with help from a crisis communications team to protect your reputation.
5. Address Workforce Concerns and Disruptions
After an ICE raid, workers may be afraid to come to work. Employers should anticipate disruptions and proactively address employee concerns. It is also important to understand that certain types of collective action, including collectively refusing to work in protest of raids, may be protected by the National Labor Relations Act (NLRA) – whether or not your employees are unionized. These protections are generally extended to undocumented workers as well.
- Train Managers. Train managers to engage with employees in a neutral manner and avoid retaliation against lawful protests.
- Foster Communication. Offer an open-door policy to encourage employees to be transparent about their status and voice their concerns.
- Review Contracts. Check collective bargaining agreements for immigration-related provisions and notification requirements.
Compliance and Ongoing Support from Seay Management
Seay Management provides a broad range of HR services designed to support your business’s growth and ensure compliance with all state and federal employer regulations. Immigration compliance is only one piece of the puzzle. From performing I-9 audits and guiding employers on using E-Verify to confirm the legal status of new-hires, to assisting with processes in the event that an employee is found to not have proper documentation to work in the U.S., we are here to ensure your business is prepared for whatever changes lie ahead.
