A new era in immigration enforcement: what employers should know

by Lori T. Chesser

Immigration law used to be something that few people thought about unless a friend or a relative was going through the system. Now, it’s a daily feature in our news and on social media. It’s likely that few of us have missed the news of President Donald Trump’s Executive Orders addressing immigration and travel to the United States. The U.S. Department of Homeland Security’s (DHS) release of internal implementation memos related to the president’s orders was international news, probably for the first time in the history of that agency.  immigrationreform

While any pervasive political issue can affect the workplace, employers are well-advised to pay attention as the new federal policy on immigration enforcement unfolds. Rare will be the employer that isn’t affected by the administration’s actions in some way.

Areas of concern

Employee anxiety. Employers may see an uptick in anxiety or absenteeism related to employees’ fears of family members or close friends being deported—or as a result of deportations actually occurring. Employees may refuse to disclose the reason for their concern, posing a challenge for HR. Although you cannot assume the reason for employee anxiety is tied to this issue, you can be aware of it as a possibility.

I-9 compliance. Employers are required to complete an I-9 for each employee who is hired after November 6, 1986. The revised I-9 form became mandatory as of January 22, 2017, and a new M-274 Handbook for Employers was recently published by U.S. Citizenship and Immigration Services (USCIS). Both can be found, along with instructions and other information, on USCIS’s website at www.uscis.gov.

U.S. Immigration and Customs Enforcement (ICE) is the agency that enforces the I-9 requirement, typically through audits. ICE is planning a 20 percent increase in staff and has raised its I-9 audit goal from 1,000 to 3,000 for the current fiscal year. The U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) and the Office of Federal Contract Compliance Programs (OFCCP) may also review I-9s in the course of their investigations.

Many observers expect that rather than following recent practices primarily focused on removing unauthorized workers, ICE will return to enforcement tactics used during George W. Bush’s administration: seeking to impose both fines and criminal penalties against employers that are found to have unauthorized workers. Although criminal penalties require proof of the employer’s “knowledge” that workers are unauthorized, that knowledge can be “constructive” (i.e., a reasonable person should have known about the unlawful practice based on the facts and circumstances) as well as “actual.”

Audit targets include employers in the retail, construction, agriculture, healthcare, and high tech industries; schools; staffing companies; and government contractors. “Misclassified” independent contractors and joint-employment relationships may heighten enforcement concerns as well. Keep in mind that using E-Verify doesn’t ensure I-9 compliance or the legal status of all workers.

To prepare for the possibility of an ICE audit, employers should consider:

  • Undertaking guided I-9 self-audits and training by an attorney with expertise in this area;
  • Adopting or updating policies on I-9 procedures to ensure compliance;
  • Adopting or updating policies on assessing information that could indicate an employee lacks authorization to work (while keeping antidiscrimination laws in mind);
  • Adopting or updating policies on responding to ICE or other government agency visits, including staff preparedness training; and
  • Tracking state legislation for additional obligations, such as mandatory use of E-Verify, as well as local immigration enforcement efforts. (Privacy laws must be considered if I-9s are requested by agencies other than those entitled to them under federal law.)

“Reverse” discrimination investigations. Traditionally, the U.S. Department of Justice’s (DOJ) Immigrant and Employee Rights Section (IER) (formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices, or OSC) has focused on protecting minority workers from abuses in the hiring or I-9 process. The IER recently issued new regulations and entered into a formal partnership with the WHD to “protect workers from discrimination based on citizenship, immigration status, and national origin, and to ensure that workers are paid properly for all the hours they work.” (For more information, see www.justice.gov.)

As a result of several highly publicized cases in which U.S. companies fired workers and replaced them with contractors on temporary work visas, many observers expect the IER to begin investigating the use of foreign workers as a form of citizenship discrimination that disadvantages U.S. workers. Companies that employ foreign workers directly or as contractors should prepare for the possibility of an investigation by documenting wage parity and, where applicable, recruitment efforts showing the lack of available U.S. workers or the unique skills of foreign workers.

Increased challenges in sponsoring foreign workers. Companies that sponsor foreign workers using H-1B, L-1, E, or other temporary visas can expect more site visits by USCIS’s Fraud Detection and National Security Directorate (FDNS). This belief is based on recent trends in FDNS activities as well as a leaked but unsigned Executive Order addressing employment-based immigration.

Employers of H-1B, L-1, and E workers in particular should review their compliance with statements made in the original document filings, including worksite location and job duties, and with export control regulations. If anything has changed, especially the location of H-1B workers, you may have to file amended paperwork. Also, labor condition attestation and wage compliance for H-1B workers may be under increased scrutiny by the new administration.

Employee travel. Although at the time of this writing both Executive Orders banning travel to the United States by persons from seven countries have been put on hold, the enforcement orders and implementing memos call into question the continued viability of a travel document used in the immigration process known as “advance parole.” Myriad concerns raised by the travel ban have made foreign-born workers increasingly wary about international travel.

Actions by U.S. Customs and Border Protection (CBP) agents while the travel ban was in effect have highlighted the need for employers to consider policies addressing access to company-owned electronic devices when employees are entering the United States. CBP agents are empowered to check such devices, which could raise sticky privacy issues or lead to contract violations.

Workforce needs still exist

For more than two decades, unauthorized immigrants have made up about three percent of the U.S. population and about five percent of our workforce. These people often have children, spouses who are U.S. citizens. You cannot discern immigration status from how a person looks or speaks. The change in immigration enforcement tactics will affect many businesses’ clients and customers in some way. In terms of employment, the new approach could have several implications.

Lori-Chesser-2IAELLIf nothing else, higher-profile enforcement efforts will highlight the need for more workers in certain industries and the strategic use of foreign talent to keep our economy productive. The United States is part of a global economy. Now more than ever, it’s critical to communicate your workforce needs to our political leaders so immigration policy will reflect reality.

Lori T. Chesser is an attorney with Davis Brown Law Firm, practicing in the firm’s Des Monies, Iowa, office. She may be contacted at lorichesser@davisbrownlaw.com.

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