Immigration Crackdown: Are You Ready?

In the same week House Republicans rolled out an immigration bill which included border security measures, U.S. Immigration and Customs Enforcement (ICE) Agents turned up at 98 7-Eleven stores in 17 states from coast to coast and the District of Columbia. Their appearance and audit netted 21 arrests and resulted in what ICE officials called the largest immigration action against an employer during the Donald Trump presidency. Derek Benner, acting head of ICE’s Homeland Security Investigations, announced the immigration enforcement action as a harbinger of things to come. “It’s not going to be limited to large companies or any particular industry – big, medium and small,” according to Benner.

Benner also warned: “We need to make sure that employers are on notice that we are going to come out and ensure that they’re being compliant. For those that don’t, we’re going to take some very aggressive steps in terms of criminal investigations to make sure that we address them and hold them accountable.”

What this means is employers need to be ever more vigilant to help ensure they are strictly hiring legal workers, that is, those who are authorized to legally work in the U.S. and can prove it.

The Immigration Reform and Control Act of 1986, as amended by the Immigration Act of 1990, makes it unlawful for an employer to hire or continue to employ a person not authorized to work in the U.S., or fail to comply with I-9 verification requirements. Good faith compliance with I-9 verification requirements creates an affirmative defense that the employer has not violated the law unless the government can show the employer had actual knowledge of the unauthorized status of the employee.

In this era of enhanced enforcement, employers must take steps to protect themselves and comply with requirements. Some of the more general compliance actions which can be taken include the following.

Hire in a lawful manner

The foundation of an immigration compliance program is the I-9 Form, which all employers must complete and have new hires complete. The forms are used to verify identity and authorization of individuals to work in the US – regardless of immigration status. Periodically auditing the forms can provide some idea of whether problems exist. The forms should be completed fully; with one for each employee; and the information contained in the I-9 must be valid and current.

Fix any problems

Auditing the I-9 Forms offers a proactive opportunity to make corrections, add incomplete information, update authorizations, etc., before ICE Agents show up.

Develop and Implement an Immigration policy

The employer’s message should be clear and unequivocal that it is dedicated to immigration compliance. Audits and corrections can only accomplish so much. Employees responsible for I-9 compliance must understand the employer’s policy and must be well-trained in and able to follow clear guidelines for ensuring compliance when unusual problems arise.

These actions are only a few that can be implemented to avoid fines, penalties or worse.