Employers Gird for Trump Immigration Crackdown to Hit Workplaces

Workplaces have so far mostly been spared from highly publicized immigration raids in the first weeks of the Trump administration, but businesses don’t expect that to last indefinitely.

Employers with immigrant workers—even those that have been shielded from enforcement actions in recent years, like hospitals and schools—are double-checking if staffers are eligible to work in the US and strategizing how to respond if Immigration and Customs Enforcement agents show up at their doors.

Attorneys are planning for worksite raids, “knock and talk” visits by agents, and intensive audits of employment eligibility at subcontractors after a period of relative calm for employers under the Biden administration, attorneys say.

“This is the time to clean your house,” said Tammy Fox-Isicoff, a partner at Rifkin & Fox-Isicoff PA in Miami. “You don’t wait until there’s a hurricane warning to stock up on water and batteries.”

Preparing for Crackdowns

ICE opened I-9 audits of more than 6,000 businesses by the third year of Trump’s first administration, requiring employers to produce documentation of each of their workers’ employment authorization. Those audits can lead to thousands in fines for paperwork violations or much more if they knowingly kept undocumented workers on their payroll.

“Employers who aren’t worried yet need to start worrying about it,” said Chris Thomas, a partner at Holland & Hart LLP.

ICE planned to double the number of I-9 audits by 2020 before the Covid-19 pandemic scuttled worksite enforcement. Immigration attorneys for months have urged businesses to check the accuracy of those I-9 forms before they get a notice they’re being audited.

They’re also advising companies to assess how many employees are on temporary immigrant relief programs targeted by the Trump administration and to assess what options—if any—are available to pursue a more secure status. The White House has begun to dismantle parole options launched by the Biden administration that allowed tens of thousands to enter the US from Caribbean and Central American countries. And it’s renewed efforts from the first Trump term to phase out Temporary Protected Status, announcing this week the April termination of benefits for 350,000 Venezuelans in the US.

“Our job is to squeeze people into these work visa categories that aren’t a perfect fit,” said Leonard D’Arrigo, leader of the immigration practice at Harris Beach PLLC.

Sensitive Locations

Attorneys are advising businesses on how to respond if ICE agents request voluntary permission to enter a workplace and speak with workers—a tactic known as a “knock and talk” often used by agents to obtain information without a warrant. Federal officials have the authority to enter public spaces in workplaces like a lobby, waiting room, or parking lot. Going into non-public areas only accessed by staff—such as a restaurant kitchen—require a warrant signed by a judge.

Creating protocols for ICE visits have become even more urgent for health-care, education, and religious employers since a Homeland Security directive last month dropped a Biden administration policy barring immigration arrests at “sensitive locations.” That’s left organizations like hospitals scrambling to put together a game plan with anyone from medical staff to patients “up for grabs” in a raid, D’Arrigo said.

His firm is advising institutions that employees have rights to remain silent and to ask that ICE agents don’t go beyond public areas without a warrant.

“Everybody is looking at what their response should be” if ICE agents show up, D’Arrigo said. “It takes one story about that and widespread panic ensues.”

Some businesses are telling employees to cooperate with immigration officials who want to speak with staff or customers. Dollar General Corp., which has 19,000 locations in the US, told store managers to ask ICE agents to conduct interviews outside of stores, according to a memo reported by Bloomberg News.

The memo also told managers to immediately contact superiors about visits by federal officials and to not let agents into non-public areas of stores without a warrant.

Subcontractor Compliance

Officials at ICE and Homeland Security Investigations will likely be keyed in on use of subcontractors with undocumented workers by employers looking to insulate themselves from liability, attorneys say. Although a company doesn’t have the right to demand documentation of work eligibility for subcontractors’ employees, they can ask a third-party such as a law firm to review compliance. Firms are “absolutely” seeing an increase in requests for those reviews since November, Thomas said.

“The subs again and again seem to have very significant problems with their level of compliance,” he said.

Asking subcontractors and other business partners to certify the employment eligibility of workers has always been a best practice to follow, said Dawn Lurie, senior counsel at Seyfarth Shaw LLP. But a jump in recent inquiries shows “people are waking up” to the need for those reviews, she said.

“There’s more of an appetite for this,” Lurie said.

The Trump administration, like previous administrations, has signaled it will hold employers accountable for immigration violations. But the speed and scope of that enforcement will depend to some extent on the resources available to Homeland Security. There’s a tension, immigration attorneys say, between pursuing criminal investigations of employers that can take significant time and resources and quickly putting as many people as possible in deportation proceedings.

Prosecuting employers for hiring unauthorized workers is complicated to begin with and becomes even more so if enforcement agencies are pursuing a “joint employer” theory, holding businesses liable for using subcontractors that violate immigration law. Assembling those cases can be complex and will require more time and resources compared to arrests of undocumented immigrants at the beginning of Trump’s term, said John Mazzeo, senior director and associate general counsel at applicant screening firm Vertical Screen Inc.

“One takes a lot more effort than the other,” he said.