The new administration is likely to have a profound impact on immigration law and enforcement come January 20. As worksite enforcement and general immigration compliance issues were a primary focus of the Trump administration's campaign, employers can expect an increase in the enforcement of immigration compliance, particularly ICE (Immigration & Customs Enforcement) I-9 audits and raids. Under the Biden administration, this area of enforcement was more relaxed than it was under the previous Trump administration. Therefore, it is important to understand an employer's obligations regarding federal immigration compliance and recommended practices to follow in the event of an audit or raid.

President-elect Trump's first term in office provides insight into expected policy and enforcement changes coming in 2025. During the 2016-2020 period:

• ICE enforcement of I-9 compliance was at an all-time high;
• ICE I-9 audits increased to 5,981 in FY2018 and 6,450 in FY2019;
• ICE's goal in FY2020 was 12,000 to 15,000 audits, but this target was curtailed by the pandemic;
• By comparison, the Bush and Obama administrations averaged 3,000 to 3,500 audits a year;
• ICE raids of employers resumed in 2018, after 10 years of no ICE raids -the 1st raid conducted in April 2018 in Tennessee - ICE detained 100+ employees. The last reported raid was in July 2020.

With these figures in mind, let's first discuss the difference between audits and raids (also known as "targeted enforcement operations").

I-9 Audits

Audits are more common than raids. That said, they can be just as damaging to an employer as they can result in operational interruption, as well as substantial civil and criminal liabilities. With an "audit," an agent of the Department of Homeland Security (DHS), ICE, or Homeland Security Investigations (HSI) will serve an employer a Notice of Inspection (NOI)/subpoena either by hand-delivery or certified mail/Fed-Ex. This document will request an employer produce Forms I-9 of all current and terminated employees (period of terminated employees varies from 1 to 3 years) and relevant supporting documentation, if any retained, including copies of documents presented (such as, but not limited to: a passport, green card, employment authorization document, driver's license, Social Security card, and/or birth certificate), E-Verify confirmations or other E-Verify paperwork. Additionally, the subpoena will request a list of employees' names and certain biographical information, most recent payroll, quarterly payroll reports filed with the IRS and/or a state agency, owners' names with biographical information, and names of contractors and staffing companies used by the employer, etc.

This demand for document production by the ICE agent(s) will normally require production within three business days. As part of routine, ICE agents might ask if an employer wishes to waive the three-day period. It is recommended that an employer never waive this period. Sometimes the length of the production time can be discussed. Upon receiving an NOI, an employer should contact their immigration counsel immediately or hire one if the employer does not already have one.

Once the employer provides the documents, an ICE auditor inspects the I-9 documentation to determine whether the law was followed. This includes checking for substantive violations, such as incomplete, incorrect, or missing forms, and technical violations (minor errors), which an employer will be given 10 days to remedy and if remedied, no penalties will be assessed. Uncorrected technical and substantive violations can result in a civil penalty of $281 to $2,789 for each individual violation. Violations related to unfair immigration-related practices or for knowingly hiring undocumented workers can result in penalties ranging from $698 to $27,894, with potential for greater numbers when dealing with DOJ investigations.

Raids

In comparison, a "raid" - which occurs when the agency is acting on a warrant to seize information and individuals - is far more disruptive on an employer and its physical worksite. With an ICE raid, numerous agents of ICE's HSI section will appear, without warning, at an employer's worksite. The intent is to surprise employers and employees. ICE raids typically occur after the government agency receives information that an employer is engaged in unlawful immigration acts and often other types of violations. When ICE agents arrive at the worksite, they will secure the premises and monitor all entries and exits. Agents will then enter the business with a search warrant. The warrant will have a detailed description of what and where agents are going to search and what they may seize. This list may include: payroll; I-9 forms and any supporting documents; bank records; Social Security Administration documents; IRS Form 940 and 940 employment tax documents; and other financial or employee records. If an employer is the subject of such a raid, it should immediately contact its immigration legal counsel.

NOTE: Employers are not required to answer an agent's questions during any worksite raid. If, during a worksite raid, ICE discovers unauthorized workers at the site, it may arrest and/or detain them and place such individuals in immigration or federal court if a federal crime, such as identity theft, has occurred. At the end of a raid, ICE agents may leave an inventory of the property seized and a list of employees arrested.

To give examples of ICE raids conducted during Trump's previous administration, in April 2018, in Tennessee, a raid occurred as the result of an investigation that began when the employer's bank questioned company officials as to why they were making large cash withdrawals every week. While the employer noted it was for payroll, ICE utilized a confidential informant who was hired at the company without filling out an I-9 form. Based on this evidence and other evidence gathered, ICE and the IRS raided the employer's facility and detained about 100 employees. A similar use of confidential informants was utilized by ICE for the authorization of raids at worksites near Jackson, Mississippi, evincing employers were knowingly hiring workers without documented status. The last major raid reported by ICE/HSI was on July 30, 2020, at a New Orleans shipyard, which resulted in the arrest of 19 unauthorized immigrants.

As worksite raids and ICE audits will likely surge under new ICE leadership, employers should be vigilant in their immigration compliance and take steps to ensure their staff are fully trained in proper I-9 documentation preparation and retention.

How can an employer prepare?

• Employers can have an immigration compliance attorney conduct or oversee an internal I-9 audit. In this manner, employers may correct any substantive errors found and avoid and/or mitigate the penalties for those errors prior to being the target of a raid or audit.
• Ensure staff are properly trained and supervised on the preparation and maintenance of Form I-9 to reduce the risk of making common I-9 mistakes.
• Develop internal proper procedures and perform regular self-audits.
• Consider enrolling in E-Verify, administered by SSA and USCIS, which streamlines employment eligibility verification.
• Ensure all employees hired have a complete I-9 Form and avoid paying employees in cash.
• Create a chart of individuals responsible for HR, legal, PR and other compliance standards.
• Prepare to address any PR issues that may result.

Posted: November 19, 2024