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How to Prepare for Increased Immigration Enforcement
With the upcoming change in the Presidential Administration, a likely increase in interior immigration enforcement is expected. Having more than 33 years of experience in immigration, both in government enforcement and in private sector consulting, I have witnessed the “pendulum swing” several times based on political and economic factors. In preparation for that next swing, employers should proactively prepare for an uptick in workplace enforcement activity by Homeland Security Investigations (HSI).
The investigative unit within HSI that manages I-9 compliance is currently branded as the Labor Exploitation Unit. It was previously known by the following names: Employer Sanctions, Worksite Enforcement, and Critical Infrastructure Protection. The unit’s current mandate on the HSI website references the following:
HSI’s labor exploitation investigations focus on protecting our nation’s critical infrastructures, reducing illegal employment and protecting employment opportunities for the country’s workforce.
The Guidepost team anticipates a significant rise in interior enforcement at places of work. The HSI is expected to use their range of authorities along with readily available investigative lead data to target specific industries. These will likely include the following:
Authorities and Lead Data
- Comprehensive I-9 audits;
- Unannounced worksite enforcement operations;
- E-Verify reports focusing on employers with high numbers of Final Non-Confirmation Reports;
- Social Security Administration (“SSA”) mismatch data focusing on employers with high numbers of wage withholdings where the submitted employee data does not match SSA data;
Targeted Industries
- Industries with historic issues of unauthorized workers to include agriculture, construction, food service, janitorial/housekeeping, landscaping, manufacturing (light and heavy industries), meat production, and temporary staffing;
- Companies with prior immigration violations or adverse enforcement actions; and
- Businesses operating in critical infrastructure areas to include airports, seaports, military facilities, and energy production facilities.
Another area which has evolved since the last large-scale activity in the interior is the “gig economy,” comprised of self-employed individuals who are not required to have an I-9 form completed by an employer. This newer ecosystem employs millions of drivers, delivery personnel, and labor task performers and has minimal government regulation regarding verification of identity and work authorization. While many of the large companies in the space perform background checks and driver records checks, some platforms are completely vulnerable to identity misuse, including identity sharing.
How to Prepare
Guidepost has assisted hundreds of clients with assessing, auditing, and remediating workforces when it comes to I-9 compliance and identity and document fraud. We have advised clients about the “pendulum swing” and emphasize the value of maintaining an I-9 compliance framework and provide continual refresher training for compliance updates as well as evolving fraud typologies within documents and identities.
For employers that may not have recently assessed their level of compliance, now is opportune time to conduct an internal or external audit to ensure your I-9s are fully compliant with U.S. regulations. We would recommend:
- Any business in the above categories conduct an employee fraud risk assessment focusing on documents as well as identities.
- For E-Verify employers, be cautious of an over reliance on E-Verify “work authorized” case closings. While E-Verify does a good job of detecting fraud within the four U.S. government List “A” documents (U.S. Passport/Passport Card, Permanent Resident Card, and Employment Authorization Document), it is highly vulnerable to identity fraud and identity misuse when employees present List “B” state-issued documents. This is primarily due to the lack of photo matching functionality with state documents as well as the lack of data sharing by many states.
The best approach to minimizing your risk is to take a proactive approach to assessing your compliance program. Guidepost offers I-9 audit and fraud risk assessment services to strengthen your immigration compliance program. In the event that your company becomes subject of an investigation or audited by federal regulators, our team is equipped to provide audit defense and litigation support services.
William Riley CAMS, CGSS, CFE
President, Compliance
As the president for compliance, Bill Riley leads the Financial Institutions and Immigration and Border Services practices. He is also a member of the Monitoring and National Security practices in the Washington, D.C. office of Guidepost Solutions. He oversees engagements relating to bank monitorships/remediation, advisorships, immigration compliance, and export and trade controls. Over the past ten years, Mr. Riley has worked on numerous international engagements for clients in more than 20 countries.
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