This opinion article is the second from the authors on this topic in the past month. It reflects recent developments with the Trump administration.
The U.S. Immigration and Customs Enforcement’s (ICE) immigration enforcement crackdown has taken a sudden and dramatic shift towards employers. While we have previously written about the administration’s focus not being primarily on businesses, that is no longer true. Employers have now become a focus of ICE’s enhanced enforcement efforts. Companies need to prepare now and proactively establish procedures in anticipation of an ICE raid. Arresting/deporting undocumented criminals and minors is no longer the administration’s exclusive focus.
What has changed?
While the Administration seems to have made great gains in controlling our borders, efforts to deport undocumented individuals is far below Administration expectations. Our previous coverage of the immigration enforcement efforts under President Trump stressed the Administration’s willingness to revise their enforcement strategy to achieve their ambitious deportation quotas. In support of this, border czar Tom Homan recently announced an initiative to increase worksite enforcement operations, especially in sanctuary cities.
Sanctuary cities are cities that limit their cooperation with federal government agencies in enforcing immigration laws. Specifically, Homan pledged to “flood worksite enforcement operations” in these sanctuary cities. Just as Homan warned, reports of raids on employers are showing significant increases around the country.
What now?
Employers, especially those operating in sanctuary cities, are now directly in the crosshairs of the Trump Administration’s revised immigration enforcement crackdown strategy. Moreover, companies in sectors with historically high numbers of immigrant workers are likely to be subject to heightened scrutiny from government agencies. Consequently, all these businesses should expect an increase in I-9 audits and workplace raids.
Employers should review their I-9 Forms for technical compliance, confirm all I-9s are maintained in separate files away from the rest of the employees’ personnel files, and confirm required documentation is not excessive and correctly documented. Employers should also learn their rights in the event ICE comes knocking on their door. Employer rights are much greater than many news reports portray. Lastly, employers should have trusted legal counsel secured to help develop a compliance plan and to respond effectively in the event of a visit from ICE.
Robert G. Brody is managing partner of Brody & Associates, a Westport law firm that represents management. Fintan Lalor is an attorney in the same practice.
