President Trump made clear he is taking action to halt the entry of undocumented immigrants along the southern US border and remove undocumented immigrants from the country. Through several of his recent executive orders, he has directed government agencies to carry out these objectives, including through enhanced civil immigration enforcement efforts and more restrictive use of humanitarian programs, including Temporary Protected Status country designations. During his last administration, we saw worksite investigations, I-9 audits, and criminal/administrative worksite-related arrests surge by 300 to 750 percent. We expect to see substantial increases during this administration.
Who handles immigration enforcement?
The US Department of Homeland Security (DHS) typically enforces our civil immigration laws—US Immigration and Customs Enforcement (ICE) in the interior and US Customs and Border Protection (CBP) at the border.
DHS expanded immigration enforcement authority for CBP across the United States and also extended immigration enforcement authority to certain law enforcement agencies within the US Department of Justice, including the Drug Enforcement Agency, Bureau of Alcohol Tobacco and Firearms, Bureau of Prisons, and US Marshalls. There has been a push to expand to state and local law enforcement authorities as well.
The results of these actions are already evident nationwide through increased worksite raids. Historically, these raids have targeted employers engaged in serious violations, including criminal acts where large populations of undocumented workers were employed. However, increased operations targeting smaller numbers of undocumented workers or non-citizens with criminal histories are being prioritized on local levels as well.
Minimize risk through preparation
Robust I-9 compliance practices and policies will help mitigate these issues. This can include but is not limited to reviewing employees’ Form I-9 and E-Verify policies and procedures, verifying the accuracy of evidence provided in previously submitted employment-based work visas and green card petitions, and correcting any errors immediately upon detection. Be aware that ICE could still investigate your workplace in connection with a lead, complaint, or based on other factors. It is important to have a worksite enforcement action plan in place so that in the event ICE makes an unannounced visit, you and your employees are ready.
Nixon Peabody’s Cross-Border Risks team is here to ensure that you clearly understand your business and employees’ rights and responsibilities and how to navigate the fallout from an enforcement action.