February 14, 2025 | Category: Compliance | Tags: , ,

Increased immigration enforcement has been a focus of the federal government in recent years. Those enforcement efforts are expected to increase significantly under the Trump administration. Therefore, employers need to prepare for increased enforcement efforts to minimize potential disruptions and remain compliant.

President Donald Trump began his second term with a number of executive actions targeting illegal immigration. Specifically, in an executive order titled, Protecting the American People Against Invasion, he directs the Department of Homeland Security (DHS) to, among other things, “take all appropriate action to significantly increase the number of agents and officers available to perform the duties of immigration officers.”

 An increase in agents and officers to enforce immigration-related priorities signals an increased risk of being subject to worksite enforcement actions for employers. Worksite enforcement actions are disruptive to business operations and can result in civil and/or criminal penalties. Therefore, employers should be proactive to safeguard their organization.

Ensuring Compliance with Immigration Laws

Ensuring that organizational practices are compliant with the law go a long way in reducing the likelihood of being the subject of enforcement actions. Employers should make sure that employees who oversee the Form I-9 process are properly trained and understand how to handle each step of the employment eligibility verification process, including tracking expiration dates for employee reverification, and storing immigration documents and forms properly.

If the organization utilizes electronic solutions to assist with or handle their Form I-9 process, they cannot simply rely on assurances that the Form I-9 vendor’s software is compliant, they need to check it against the regulations. Employers will ultimately be responsible for the compliance of the systems they use. With penalties for Form I-9 paperwork violations being up to $2,861 per violation, it can become costly to not do your due diligence.

Lastly, all organizations regardless of industry should prioritize conducting periodic internal Form I-9 and other immigration-related document audits. Internal audits are often the best way to ensure compliance and show a good faith effort to comply with immigration laws if and when an enforcement action occurs.

Conducting Internal Audits

An internal audit of the Form I-9 and related immigration documentation allows employers to verify the processes they have put in place are compliant with the Immigration Reform and Control Act (IRCA), which requires employers to verify a newly hired employee’s eligibility to work in the United States. It’s important for internal audits to be thorough to safeguard the organization against any enforcement action.

In conducting an internal audit, employers should, at a minimum, verify they have a completed Form I-9 for all current employees and that all sections of each Form I-9 are complete and accurate. If errors are discovered, errors should be corrected. An internal audit should also include an audit of Forms I-9 for terminated employees. Remember, employers are required to retain a Form I-9 for each employee for three years after the date of hire or one year after the date employment ends, whichever is later. Therefore, even errors found on the Form I-9 of employees that no longer employed by the organization can result in penalties.

All steps the organization takes during an internal audit should be documented in an audit log. That includes a listing of all errors discovered and the steps taken to correct them.

Have a Plan for Immigration Raids

Even if employers do everything they can and should do to comply with immigration laws, they can still find themselves subject to an immigration raid. An immigration raid does not necessarily indicate the employer has done anything wrong; they can result from random or targeted audits or referrals from other government agencies.

Immigration raids are typically unannounced and involve immediate on-site inspections. These unannounced inspections demand a well-defined and practiced response plan. This ensures the organization can calmly and effectively navigate what will be a high-stress situation and protect the organization from legal liability and reputational damage.

Employers should develop a rapid response plan and train employees on it to ensure that the arrival of immigration agents triggers a prompt and proper response from the organization. Both managers and employees benefit from knowing what actions to take (and what actions to avoid) when an immigration raid occurs.

Designate a Response Team

The organization should assemble a team of key personnel and decision makers to manage the situation in the event of a raid. That can and should include representatives from HR, legal counsel, company leadership, security, etc. This team should be trained in the law as well as company policy and procedures to ensure all actions taken are compliant and allow the organization to act quickly and efficiently.

Establish Communication Protocols

Communication between managers, employees, and legal counsel during an immigration raid is extremely important. The plan should include instructions on how employees can report a raid, how managers inform employees, and who is responsible for contacting legal counsel. Designated members of the response team should be tasked with communicating with ICE agents to ensure clear and consistent communication.

Train Employees

In addition to training members of the response team, employers should consider training employees on their responsibilities during a raid to help the organization minimize legal risks and avoid chaos. That includes training employees to avoid any actions that could be seen as obstructing the raid.

Review the Search Warrant & Scope of Information to Provide

Employers are expected to cooperate with ICE agents, but they also can protect their employees and their business. Employers should always review any search warrant provided by ICE agents and provide a copy to their legal counsel as soon as possible. It’s important to understand the scope of the search warrant so the organization can ensure access and information is provided consistent with the terms of the search warrant. Remember, being cooperative does not mean ICE agents get unrestricted access to your workplace.

Document Actions

Employers can and should document actions taken by ICE agents during an immigration raid to protect the organization and employees. However, employees need to be instructed not to interfere with or obstruct a raid in their pursuit of documentation.

Develop Plan for Communication & Business Continuity

Communication before, during, and after an immigration raid is important to manage the situation effectively. Employers need to develop communication strategies to inform employees about what is going on and what to do clearly and calmly to avoid creating a panic. They should also develop a communication plan for addressing external entities (i.e. clients, media, etc.) to minimize potential reputational damage.

The organization needs to continue operating after the immigration raid. Therefore, the plan should also include how business will function once ICE has come and gone, including staffing contingencies for worker absences, rescheduling or redistributing workloads, etc. The organization will also need to plan for maintaining a positive work environment and employee morale.

Key Takeaway for Employers

The increased potential for Form I-9 audits and immigration raids will likely be a reality for employers for the immediate future. However, by prioritizing Form I-9 compliance, conducting regular internal audits, and developing comprehensive plans for immigration raids, employers can safeguard their organizations against the legal and operational challenges posed by the heightened enforcement efforts. These proactive steps, while demanding, are crucial for navigating the evolving landscape of immigration enforcement and maintaining business continuity.