President Trump Hints that Worksite Enforcement May Return

During his inaugural address, President Trump provided a glimpse into the priorities his administration will pursue, including immigration enforcement. He stated, in part, “We will get our people off of welfare and back to work – rebuilding our country with American hands and American labor.” This clearly points not only a desire to prevent the outsourcing of American jobs, but also a desire to ensure only authorized workers in the United States are engaged in the workforce.

President Trump and his administration will likely take employers to task who either knowingly or unknowingly have unauthorized employees on their payrolls.  Businesses big and small should take notice that an administration elected on a platform of strong immigration enforcement will surely hold violators of these laws accountable. Employers risk a serious public relations crisis at best and/or equally as devastating, a significant enforcement action that disrupts business operations.

The new Congress is likely to support additional resources this year for Immigration and Customs Enforcement (ICE) to support enhanced enforcement. A combination of paper audits and onsite enforcement actions will prove a force multiplier in demonstrating the administration’s commitment to worksite enforcement. With the previous administration having expanded legal protections for new hires, it’s critically important that employers seeking to take additional steps to ensure their compliance with immigration laws do so in a way that doesn’t incur unintended consequences.

Fortunately for many, there is time, albeit not much. Agents aren’t likely to show up on your doorsteps tomorrow. ICE has spent much of the last administration conducting worksite enforcement in a manner similar to the IRS – paperwork audits.  Even these paperwork audits have slowed significantly over the past two years and the agency has not publicized fines or results. Shifting to a policy where enforcement involves onsite inspections, more criminal cases against employers, and potentially arrests of unauthorized workers and managers will require a shift in resources and significant planning. That said, patience for businesses that haven’t heeded the shift in views of the new administration will likely be short. Businesses will likely experience stiff fines, significant publicity, and even arrests of corporate leaders and managers who may be viewed as engaged in the hiring of unauthorized workers. Demonstrating that you are taking steps to ensure that your workforce is authorized is more forgivable than waiting to see if immigration agents have identified a problem.

So what should businesses be doing?

• Join E-Verify now.  E-Verify remains a critical tool for immigration enforcement, and based on some media reports, will likely be expanded or made mandatory for all businesses in the near term. Although participation in E-Verify does not ensure complete immigration compliance, this participation shows good faith on behalf of the company. Companies that are not on E-Verify will likely remain higher targets for ICE enforcement activity.
• Conduct an internal audit of I-9s and your business immigration program.  It is important to review I-9s not only for technical violations but for substantive violations. In addition, given the new Administration’s statements about the use of H-1B visas, employers that utilize those visas should review their program to ensure that they are in complete compliance.
• Develop or formalize internal processes and procedures for immigration compliance. This includes processes relating to employees who indicate that they have adjusted their status during employment.

I highly recommend any employer looking to evaluate their immigration compliance take a fresh look at their current program and engage appropriate experts. In today’s environment, employers are being asked to thread a needle, and engaging professional expertise is an important step to ensure employers successfully navigate the compliance environment.