A series of Immigration and Customs Enforcement raids conducted nationwide over the past several weeks has further evidenced the present era of heightened immigration scrutiny and enforcement of immigration under the Trump Administration. Employers must be prepared for the impact these enforcement actions could have not only upon its workforce, but upon its operations management and immigration compliance programs.
The Trump Administration has, in many ways, made immigration enforcement an important priority of the federal government. In May, the Social Security Administration resumed issuing “no-match” letters to employers. These letters inform employers of their workers whose Social Security numbers on tax documents do not match SSA records.
The issuance of these letters—and the sharing of this data with ICE and other agencies—will likely lead to further immigration enforcement actions, including directly targeting employers for violations of standards for verifying employment authorization and identity.
The president’s February State of the Union Address referenced specifically the “moral duty to create an immigration system that protects the lives and jobs of our citizens.” This includes an emphasis on worksite enforcement, which is borne out by recent statistics released by ICE showing that in the second quarter of fiscal year 2019 (from January 2019 to March 2019), ICE and U.S. Customs and Border Protection arrested more than 63,000 individuals as part of immigration enforcement actions.
ICE has also increased scrutiny of employers. In fiscal year 2018, which is the most recent data available, ICE quadrupled its audits of worksites for immigration-related compliance, setting 10-year highs for the number of worksite audits conducted (5,981) and criminal charges filed (779). Among the 779 criminal charges filed, 72 employer managers were charged with criminal violations.
This employer-focused enforcement climate has brought attention to Form I-9 and E-Verify compliance by employers—especially those operating in industries that require low-skilled or manual labor, such as chain retail stores and restaurants, food processors, hospitality firms, construction and landscaping companies, and agricultural facilities.
The highly politicized nature of immigration enforcement—and its potential for negative reputational impact—has been featured in recent media reports detailing the hiring practices of multiple businesses and industries, including some businesses owned by President Trump and run by his family.
The latter has included a focus on the government’s E-Verify program for electronic verification of employment authorization, which is voluntary in the absence of select state and federal government contract requirements.
No employer is immune from the increased scrutiny on immigration compliance as evidenced by other reports of significant ICE raids such as a nationwide coordinated raid of 7-Eleven convenience stores that led to 21 arrests; a raid of a North Carolina manufacturing plant that resulted in the detaining of 30 people; and a raid at a produce processing facility in Nebraska that resulted in 133 arrests.
These developments underscore the importance of aligning hiring and employment practices with standards for verification of identity and employment authorization of new hires.
Employer Checklist to Identify Risk Factors
Preparedness for aggressive investigations and worksite enforcement requires a detailed understanding of civil and criminal enforcement standards and regulations, as well as an investment in internal investigations and crisis management. We have developed the following employer checklist to assist employers in identifying key factors related to the risk profiles for worksite enforcement:
1) Do you operate in an industry that relies upon large numbers of low-skilled or manual workers?
Recent raids of convenience store chains, restaurants, food processing facilities, and gardening and landscaping companies reveal a pattern of workplace enforcement that targets businesses with a low-skilled workforce.
2) Has your business conducted an external audit of its workforce employment authorization verification practices in the past five years?
In addition to regular internal audits conducted by employers of their verification records, the present environment demands external review by independent professionals with experience in identifying weaknesses in overall compliance practices, as well as potential liabilities related to violations of employment verification regulations.
3) Do you retain external counsel that has experience not only in immigration compliance but also in immigration-related investigations and crisis management?
Expanding worksite enforcement by ICE and the U.S. attorneys’ offices carries the potential for disrupting workforce continuity and hampering the ability of employers to continue to operate. Moreover, continuing to conduct business in the midst of a criminal investigation brings particular challenges.
Businesses are well-advised to engage counsel possessing a deep knowledge of immigration compliance and investigatory matters. Businesses must be prepared to respond quickly to allegations of immigration violations and aggressive investigations by ICE, federal prosecutors, the Department of Justice’s Immigration and Employee Rights Division, and related agencies. Experience working with enforcement agencies and federal prosecutors is critical to an employer’s ability to withstand federal scrutiny of its employment practices.
4) Does your business have a standardized practice for the onboarding and retention of new workers? Do your practices vary by facility and location?
In the current high-scrutiny environment, a failure to standardize routine events such as the recruitment and onboarding of new workers can place a business at significant risk. Employers should review human resources practices across worksite locations and business divisions to ensure that company-wide policies and practices align with workforce employment authorization verification requirements.
5) Has your company enrolled in the Department of Homeland Security’s E-Verify program?
E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees with records available to the SSA and the DHS.
While participation in the program remains generally voluntary, ICE considers enrollment to be a best practice and may, when combined with careful attention to the reality of identity theft, provide an employer with a measure of protection against allegations of violations of workforce employment authorization verification requirements. E-Verify does not currently incorporate identity fraud tracking components.
No employer is immune from the scrutiny of federal immigration agencies, especially ICE. It is also clear that the DHS and the U.S. Attorneys’ Offices are focused on identifying and prosecuting immigration compliance failures that rise to the level of criminal violations. U.S. employers are well advised to plan accordingly.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Elizabeth Espín Stern, a partner in Mayer Brown’s Washington, D.C., office, leads the firm’s Global Mobility & Migration practice, which forms part of the Employment & Benefits group.
Dan Stein is a partner in Mayer Brown’s New York office and a member of the Litigation & Dispute Resolution practice. He leads the firm’s global Regulatory & Investigations group and is a co-leader of the White Collar Defense & Compliance group.
Max Del Rey is an associate in Mayer Brown’s Washington, D.C., office working in the Employment & Benefits group