Trump’s Increased Immigration Enforcement: What It Means to All Employers

By John Hill and Rebecca Sigmund
Shareholders in the Immigration Practice Group at Ogletree Deakins Law Firm based in South Carolina

In January 2017, President Trump signed an executive order, “Enhancing Public Safety in the Interior of the United States,” that called for an expansion of immigration enforcement within the nation’s borders. Department of Homeland Security Secretary John Kelly recently issued a plan for implementing this order.  A significant portion of the implementation plan calls for fast-track removal mechanisms and rescinds protective orders in place for certain volatile groups (NOT including DACA children and certain others).

More importantly to employers, the plan calls for ICE (Immigration and Customs Enforcement) to hire 10,000 additional officers for interior enforcement.  This means more I-9 audits and raids of employers should be expected in the near future, and prudent employers should give priority to reviewing its internal I-9 practices and policies and conducting the recommended “at least once a year” audit of its I-9 forms.

In recent years, there has been a significant uptake in I-9 audits as well as investigations of immigration related discrimination claims. Trump’s order is expected to intensify these efforts. Recent enforcement actions reflect a trend towards a criminal focus, resulting in criminal charges and prosecutions of employers, including executives and human resources managers individually.  ICE enjoys the publicity it gains in these kinds of cases and believes that such heightened enforcement mechanisms serve as deterrence or wake up call for other employers.  However, even if an employer is “only” concerned about civil sanctions, employers should keep in mind the publicity the company would face as well as the cost of civil fines (with penalty levels that increased in 2016 by more than 100 percent in some instances). More importantly to some employers would be the potential civil sanction of debarment or suspension from entering into federal contracts.

In remaining compliant with the I-9 work verification rules, employers have to walk a very fine line in being zealous, but not over-zealous, in verifying or re-verifying the work authorization of employees. Over-zealousness could lead to discriminatory events or practices.  The Immigrant and Employee Rights Section (IER – formerly the Office of Special Counsel) of the Department of Justice (DOJ) is responsible for the anti-discrimination enforcement side of the I-9 rules and in so doing, investigates discriminatory claims brought by individuals and conducts investigations.  The IER can award reinstatement of employment, back pay, assess civil penalties and expand investigations to find a pattern and practice of discrimination.  Like ICE penalties mentioned above, penalty levels available to IER increased significantly in 2016.  The result to employers: expensive and document intensive litigation and oversight and reporting to IER for a long period of time.  Note that IER uses data gathered through various sources including E-Verify data provided by DHS. So employers should not forget to include a review of its E-Verify processes as well.

In case employers did not have enough to worry about with the risk of increased enforcement and maintaining compliance, they are also grappling with the new I-9 “smart form” introduced at the end of 2016. As of January 22, 2017, all employers must use this new I-9 form (dated 11/14/2016 N).  Employers should include training on this new form as they conduct a review of their I-9 forms, practices and policies to ensure they are ready when ICE comes knocking.

The new I-9 smart form contains certain helpful features including drop-down menus, hover text, real-time error notifications and calendars for filling in dates.  With these features, the new form alerts users that a required field is blank and it automatically marks fields that do not apply to an employee with “N/A”.

Even though these changes are useful, the smart form is not an electronic I-9 as defined by DHS regulations.  It cannot be stored, uploaded, or saved as an electronic I-9.  Employers must continue to print a copy of the form and proceed with their normal signing, storing, and reverification practices for paper forms I-9. The employer continues to be responsible for reviewing proper documentation from the employee and ensure that in so doing, they abide by the anti-discrimination provisions.

Proper compliance on the immigration front is more important than ever, given the Trump Administration’s focus on enforcement.  Employers must keep up with the changes and at the same time, balance their zealousness as they walk that tight rope of I-9 compliance.

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 [email protected] or John Hill at [email protected].