by JPeters | December 18, 2024 7:29 pm
While many of us are making predictions about the manner and degree of change that the incoming Trump administration represents, one change seems inevitable: In the months ahead, employers can anticipate a significant increase in the number of worksite investigations initiated by Immigration and Customs Enforcement[1] (ICE). While any large-scale deportation initiative would immediately face legal, logistical, and constitutional challenges, employers can anticipate an immediate policy shift targeting non-citizen labor as soon as the new administration takes office in January.
What to expect
The new scrutiny of all corporate immigration practices will likely result in:
• Fewer Employment-Based Visas: Employers can anticipate a renewed emphasis on reducing the availability and use of work visas by enforcing a strict interpretation of “specialty occupation” requirements for H-1B visas. As in the first Trump administration, all visa applicants — and the companies that employ or desire to employ them — can expect extremely long wait times for visa interview appointments, frequent administrative processing delays, and a much higher refusal rate. Non-citizen employees may be less able to travel internationally for work due to the risk of being unable to return to the United States.
• Increased Enforcement: Employers can anticipate intensified worksite enforcement actions, audits, and immigration-related fines and investigations. During the first Trump administration, worksite enforcement investigations[2] increased by 405 percent, and worksite-related administrative arrests rose by 887 percent. Employers in highly scrutinized industries like construction, manufacturing, food service, hospitality, and agriculture can expect ICE “raids,” which will have a chilling effect on the recruitment and hiring of all authorized workers, including foreign-born workers permanently authorized to work in the United States. This group consists of United States citizens, permanent residents, and asylees.
• Increased Costs: Employers can anticipate the costs of sponsoring employees for visas and green cards to increase due to amplified documentation requirements and a much higher denial rate[3]. Under the Biden administration, denial rates for employer-sponsored H-1B visas were between 2 and 3 percent. Under the previous Trump administration, employer-sponsored H-1B denial rates ranged from 8 to 15 percent. Denial rates for some work visa categories exceeded 30 percent under the first Trump administration.
Employers should Review the law
The Immigration Reform and Control Act[4] (IRCA) of 1986 requires employers to verify and document the identity and work eligibility of everyone they hire. Applicants and employees without proper documentation are subject to detention and removal. Employers who hire undocumented workers may also face civil and criminal penalties.
ICE can legally enter nonpublic areas of a worksite for limited purposes, including executing warrants, pursuing a fleeing suspect, and responding to emergency situations. ICE must have probable cause to believe a crime has been committed and that relevant evidence can be found at the facility.
ICE can also serve employers with a Notice of Inspection[5] (NOI), demanding certain documents and records (i.e., historical lists of workers with dates of hire and termination, payroll and tax records, company ownership information, staffing and vendor information, Employment Eligibility Verification Form I-9s,[6] and any other documentation related to employee identification and authorization).
Thomas Homan[7], recently appointed as the new Trump administration’s “border czar,” indicated his intention to “return to an era of heightened worksite enforcement.[8]”
Penalties
Non-compliance with immigration regulations can be expensive. Violations of I-9 requirements can result in fines up to $2,789 per form. Knowingly hiring undocumented employees can result in penalties of $5,579 for first-time offenders and up to $27,894 for repeat offenders.
Owners and managers may also face jail time for crimes such as “harboring” undocumented workers. Under the Criminal Forfeiture Statute[9], juries may seize “all assets used in the commission of the crime as well as all proceeds of the crime.”
Violations can also prevent businesses from competing for government contracts, damage employee morale, and disrupt business operations—especially in businesses that rely on immigrant labor.
Preparing for ICE
An estimated 14 million undocumented immigrants[10] live and work in the United States today. While we can expect immigration officials in the Trump administration to target industries with a high share of immigrant labor (i.e., manufacturing, hospitality, construction, and agriculture), it’s important to remember that a range of diverse and seemingly unrelated businesses were targeted for inspection during the first Trump administration.
As inauguration day approaches, employers in all sectors should consider measures to help mitigate the disruption and exposure that an ICE worksite enforcement visit can create.
• Ensure I-9 and E-Verify Compliance[11]: All employers should examine and update their employment authorization verification policies and procedures. Anyone responsible for recruiting, hiring, and orienting new employees will need training. Employers should consider whether to perform a “self-audit,” perhaps with the assistance of immigration law experts, to determine if their I-9 protocols and files are in good shape. While the E-Verify program[12] remains voluntary at the federal level, there is no reason to think it will stay that way. Some states have already made E-Verify mandatory[13], and employers should find out if they are subject to mandatory E-Verify laws in any state where they have foreign-born employees. E-Verify is not yet mandatory in New Hampshire, where Orr & Reno is located.
• Establish Policies: If not already in place, employers should develop policies and protocols for senior management to follow when ICE—or any government agency—comes calling. Contacting legal counsel should be at the top of the list.
• Train the Front Desk: Ensure that the people who will first see ICE personnel — including security guards and receptionists — know how to respond. The response should reflect the employer’s desire to cooperate without compromising legal rights.
While considerable uncertainty exists about the full nature and scope of the Trump administration’s broader policy agenda, ICE enforcement efforts are a clear priority. If you have any questions or concerns about your compliance with current immigration policies, the legal status of new hires, or any other issue involving foreign nationals and workforce development plans, don’t hesitate to contact Orr & Reno for assistance.
Steven L. Winer[14] and Emily A. White[15]
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