The Trump administration has made immigration enforcement an important priority of the federal government. This includes an emphasis on worksite enforcement, which is borne out by recent statistics released by US Immigration and Customs Enforcement ("ICE"). The data shows that in fiscal year 2018 (ending September 30, 2018), ICE quadrupled its audits of worksites for immigration-related compliance, setting 10-year highs for the number of worksite audits conducted (5,981) and criminal charges filed (779). Among the 779 criminal charges filed, 72 employer managers were charged with criminal violations.
This employer-focused enforcement climate has brought attention to Form I-9 and E-Verify compliance by employers—especially those operating in industries that require low-skilled or manual labor, such as chain retail stores and restaurants, food processors, hospitality firms, construction and landscaping companies, and agricultural facilities. The highly politicized nature of immigration enforcement—and its potential for negative reputational impact—was featured in a recent Washington Post report detailing the questionable employment practices of businesses owned by President Trump and run by his family.
The recent coverage of the Trump family's business operations shows that no employer is immune from the increased scrutiny on immigration compliance and underscores the importance of aligning hiring and employment practices with standards for verification of identity and employment authorization of new hires. Preparedness for aggressive investigations and worksite enforcement requires a detailed understanding of civil and criminal enforcement standards and regulations, as well as an investment in internal investigations and crisis management.
We have developed the following employer checklist to assist employers in identifying key factors related to the risk profiles for worksite enforcement:
- Do you operate in an industry that relies upon large numbers of
low-skilled or manual workers?
Recent raids of convenience store chains, restaurants, food processing facilities, and gardening and landscaping companies reveal a pattern of workplace enforcement that targets businesses with a low-skilled workforce.
- Has your business conducted an external audit of its workforce
employment authorization verification practices in the past five
In addition to regular internal audits conducted by employers of their verification records, the present environment demands external review by independent professionals with experience in identifying weaknesses in overall compliance practices, as well as potential liabilities related to violations of employment verification regulations.
- Do you retain external counsel that has experience not only in
immigration compliance but also in immigration-related
investigations and crisis management?
Expanding worksite enforcement by ICE and the US Attorneys' Offices carries the potential for disrupting workforce continuity and hampering the ability of employers to continue to operate. Moreover, continuing to conduct business in the midst of a criminal investigation brings particular challenges. Consequently, businesses are well-advised to engage counsel possessing a deep knowledge of immigration compliance and investigatory matters. Businesses must be prepared to respond quickly to allegations of immigration violations and aggressive investigations by ICE, federal prosecutors, the US Department of Justice's Immigration and Employee Rights Division, and related agencies. Experience working with enforcement agencies and federal prosecutors is critical to an employer's ability to withstand federal scrutiny of its employment practices.
- Does your business have a standardized practice for the
onboarding and retention of new workers? Do your practices vary by
facility and location?
In the current high-scrutiny environment, a failure to standardize routine events such as the recruitment and onboarding of new workers can place a business at significant risk. Employers should review human resources practices across worksite locations and business divisions to ensure that company-wide policies and practices align with workforce employment authorization verification requirements.
- Has your company enrolled in the US Department of Homeland
Security's E-Verify program?
E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees with records available to the US Social Security Administration and the US Department of Homeland Security ("DHS").
While participation in the program remains generally voluntary, ICE considers enrollment to be a best practice and may, when combined with careful attention to the reality of identity theft, provide an employer with a measure of protection against allegations of violations of workforce employment authorization verification requirements.
No employer is immune from the scrutiny of federal immigration agencies, especially ICE. It is also clear that DHS and the US Attorneys' Offices are focused on identifying and prosecuting immigration compliance failures that rise to the level of criminal violations. US employers are well advised to plan accordingly. For example, it is critically important that businesses review their human resources policies and practices across worksite locations and business divisions to ensure that they are aligned with workforce employment authorization verification requirements. Prudent preparation includes periodic independent audits of work authorization (Form I-9 and E-Verify) compliance and the retention of qualified counsel with experience in immigration-related enforcement and crisis management as well as experience dealing with federal prosecutors.
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This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.