Immigration Enforcement Update – Impact on South Carolina Employers

By Rebecca Sigmund and John Hill
Ogletree Deakins South Carolina

Tom Homan, current acting U.S. Immigration and Customs Enforcement (ICE) Director, has been nominated by President Trump to head the agency on a permanent basis.  Homan has stated that ICE will significantly increase (quadruple) the number of worksite inspections and start prosecuting more businesses that are found to knowingly hire unauthorized workers. Known for his tough stance on I-9 enforcement violators, Homan is expected to take immediate measures to deploy ICE resources to fulfill his mission.

The ICE directive comes just after the recent announcement of the largest fine ever imposed for I-9 violations.  South Carolina employers should take immediate action to protect the company and its employees responsible for I-9 compliance.  Any compliance plan would be expected to include full initial training of all employees involved in the I-9 process as well as scheduled annual training.  Materials regarding I-9 completion and retention should be prepared and maintained by each person and updated annually.  Companies should also designate someone as the primary I-9 compliance officer and establish other legal resources for issues that arise – including responsibility to monitor the frequent changes and updates in the immigration laws and guidance.

Often employers ask how companies are selected for an investigation.  In short, no South Carolina employer is safe from the audit selection process.  However, generally, ICE uses a multipronged approach for worksite enforcement that includes outreach.  Enforcement is heavily focused on employers tied to the U.S. infrastructure, such as airports, power and water sources, and military bases, but still uses general leads.  Cases involving national security or public safety implications receive top priority, as do investigations involving allegations of egregious worker exploitation.

Lead-driven cases are mostly driven by leads from other government agencies including the Department of Labor (EEOC investigations, wage and hour audits, etc.) and U.S. Citizenship and Immigration Services (USCIS) through the E-Verify program.  In fact, because South Carolina employers are required to participate in E-Verify, they should be aware of the Information Sharing Memorandum of Agreement between ICE and USCIS.  The agreement outlines the coordination and management of referrals by USCIS to ICE regarding the “misuse, abuse or fraudulent use of the E-Verify program.”  Along these lines, there has been an increase this year in E-Verify driven compliance audits of enrolled employers.

Another layer of cooperation between USCIS and ICE is mandated through a 2006 Memorandum of Understanding (MOU) between USCIS and ICE regarding the work of the Office of Fraud and Detection and National Security (FDNS) that was formed to address national security and immigration benefit fraud concerns.  The FDNS is responsible for issues of national security threats present in immigration applications and the detection of immigration benefits fraud, all in cooperation with ICE.

South Carolina employers should expect to see ICE audits quadruple in the near future and should take steps now to assess their I-9 compliance program. As part of this assessment, employers should review and audit the company’s E-Verify processes in place, evaluate training needs and conduct an internal audit of the I-9 forms.  All should be evaluated to ensure compliance before ICE comes knocking.

Ogletree Deakins has one of the largest business immigration practice groups in the Carolinas with eight immigration attorneys in South Carolina alone. 

Contact Rebecca Sigmund at [email protected] or John Hill at [email protected].