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17 January 2025

Immigration Compliance For Employers In 2025: Guide To Worksite Audits

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Dickinson Wright PLLC

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During the first Trump administration, worksite enforcement actions (aka raids) were focused in the Southeast and Midwest. The primary industries targeted were manufacturing and meat/poultry processing.
United States Immigration

During the first Trump administration, worksite enforcement actions (aka raids) were focused in the Southeast and Midwest. The primary industries targeted were manufacturing and meat/poultry processing.1 In 2017, Thomas Homan was the acting director for the U.S. Immigration and Customs Enforcement (ICE). He directed Homeland Security Investigations (HSI) to increase worksite immigration enforcement actions by four to five times.2 In fiscal year 2018, ICE arrested 2,304 people at worksites, which represented an increase of seven times over the prior fiscal year. As the incoming Border Czar, Mr. Homan has announced his plans to increase worksite enforcement again in 2025, depending on funding from Congress.3 This plan is in stark contrast to the 2021 Memorandum issued by Secretary Mayorkas of the U.S. Department of Homeland Security (DHS) ending mass worksite enforcement operations.4

HSI uses three primary methods to worksite enforcement: a) compliance via Form I-9 inspections, applicable civil fines, and referrals for debarment; b) enforcement through the criminal arrest of employers and the administrative arrest of unauthorized workers; and c) outreach through the use of the ICE Mutual Agreement between Government and Employers, or IMAGE program, to create a culture of compliance and accountability.5 HSI may also debar employers from receiving federal government contracts, loans, grants, or other assistance programs for failure to comply with federal employment laws.

What industries are likely targets for worksite enforcement actions?

Undocumented workers are concentrated in certain industries. These industries have been identified as the following: agriculture, construction, leisure/hospitality, services, and manufacturing.6 For example, current estimates indicate that approximately 30% of construction workers in the U.S. are undocumented workers.7 ICE investigations are often based on leads and tips from a variety of sources.8 Investigations regarding the following are a top priority: national security, public safety, and critical infrastructure9. The Critical Infrastructure Sectors include the following sectors: Chemical; Commercial Facilities; Communications; Critical Manufacturing; Dams; Defense Industrial Base; Emergency Services; Energy; Financial Services,; Food and Agriculture; Government Services and Facilities; Healthcare and Public Health; Information Technology; Nuclear Reactors, Materials, and Waste; Transportation Systems; and Water and Wastewater.

How do these enforcement actions start?

ICE has prioritized investigations involving potential criminal prosecutions of employers. In the past, their focus has included employers who:

  • Use unauthorized workers,
  • Mistreat workers (e.g., pay, benefits, housing, etc.),
  • Participate in human smuggling or trafficking,
  • Collude or engage in identity and/or benefit fraud,
  • Engage in laundering money and/or
  • Engage in criminal conduct.10

Investigations may commence based on a variety of resources including undercover investigative operations in egregious cases. Tips from a competitor or employee are also common.11 In addition, agency audits of employers' Forms I-9 are another avenue. For employers utilizing E-Verify, 12 the data provided to E-Verify is mined13 and supplied to ICE and the Department of Justice (DOJ), Immigrant and Employee Rights (IER) section regarding the potential employment of undocumented workers or the application of discriminatory employment practices, respectively. Some examples of E-Verify practice patterns that can trigger further inquiry include:

  • Use of invalid Social Security Numbers (SSNs).
  • Immediately terminating employees subject to a Temporary Non-Confirmation (TNC) notice.
  • Failing to create a case in E-Verify by the third day after the employee started work for pay.
  • Using E-Verify to verify existing employees.
  • Failure to use E-Verify after execution of the Memorandum of Understanding with DHS.
  • Continuing employment after receipt of a Final Non-Confirmation (FNC).
  • Failure to download/print a Temporary Non-Confirmation (TNC) notice.
  • Use of the same SSN by multiple employees.
  • History of a high percentage of legal permanent resident cards for List A used in Form I-9 completion.

It is important to remember that companies and company management can be criminally prosecuted for the pattern or practice of knowingly hiring or continuing to employ unauthorized workers.14

What is a "knowing" hire of an unauthorized worker?

Regulations define the term "knowing" to include not only "actual" knowledge but also knowledge that may be reasonably inferred through notice of certain facts and circumstances that would lead a person using "reasonable care" to know about specific conditions. This type of "constructive" knowledge can also lead to "knowing" hire penalties. Examples of constructive knowledge are as follows:

  • An employer's failure to complete or improperly complete the Form I-9 to determine employment eligibility.
  • An employer who has information that an employee is not authorized to work, such as the employee's request for the filing of a labor certification and/or an application for immigration status.
  • An employer acting with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized worker into its workforce or to act on its behalf. (e.g., contracted worker via a staffing company).15

In addition, employers can still be deemed as knowingly hiring an unauthorized worker by using a contract, subcontract, or exchange to obtain such labor in the U.S. through a third party. Knowledge that an employee is unauthorized MAY NOT, however, be inferred from an employee's foreign appearance or accent.

Immigration-related audits and enforcement actions – which agencies enforce?

The primary types of immigration-related investigations/audits are:

  1. Form I-9 audits conducted by ICE/HSI.
  2. Compliance audits/inquiries as to visas and petitions/applications for immigration benefits conducted by the Fraud Detection and National Security Directorate (FDNS)16 of U.S. Citizenship and Immigration Services (USCIS) as well as Diplomatic Security or the Fraud Unit of the Department of State (DOS).
  3. Worksite enforcement actions/raids of employment sites conducted by ICE/HSI sometimes in concert with other law enforcement agencies.
  4. Wage and Hour Division (WHD) of the Department of Labor (DOL) audits/investigations of I-9 forms, wages paid to certain nonimmigrants such as H-1B or H-2A workers, as well as compliance with restrictions on working conditions and wages paid to U.S. workers in comparable positions.

Top 5 risk management actions to consider:

  1. Conduct an internal audit of Forms I-9 and a compliance assessment of immigration-related requirements for nonimmigrant and immigrant company beneficiaries to reduce liability and spot penalty exposures to address in advance. This audit should include a review of DOJ/DHS guidance on internal audits.17
  2. Develop a company response protocol as to any government agency request for information or potential subpoena/warrant requiring access to the work site, company records, and/or employees for questioning.
  3. Establish required company contacts to address any government agency contact/request/subpoena/warrant.
  4. Provide training and information for management to reference when subject to subpoenas or search warrants to company management and key employees. It is important to understand potential exposure to obstruction of justice allegations as well as to relevant federal and state laws regarding data privacy.
  5. While the use of the cloud for storing critical company operation and personnel data has reduced the risk of business interruption due to an agency seizing laptops, paper files, and hard drives, it is still important to make sure that company records and operational data can be utilized in the event of a seizure of company property due to a search warrant.

What to do when FDNS or other compliance officers come knocking:

  1. Instruct the point of contact at the worksite to request the officer's/agent's business card or contact information.
  2. Ask the officer to wait while notifying the correct company contact.
  3. Follow the established protocol for access to the worksite or an employee and be cognizant of applicable federal state laws as to privacy.
  4. Advise the company contact to request to schedule a different date for the worksite access when possible.
  5. Arrange for a witness to any communications with the officer.
  6. Create a company "go bag" of typical corporate and financial information as well as a sponsored employee list for ease of access.
  7. Establish a policy to access employee information.
  8. Never provide information that is not confirmed. Guesses are a compliance nightmare.
  9. Document any information provided to an officer, including verbal responses.
  10. Contact legal counsel immediately upon the provision of any subpoena or notice of inspection.

Exhibit A – Sample FDNS Email Questions As to L-1 Compliance

Exhibit B – Worksite Enforcement Action Agency Checklist

Exhibit C – Form I-9 Inspection Process

Footnotes

1. See Worksite Immigration Raids Under the Trump Administration, National Immigration Law Center (Jan. 1, 2020) https://www.nilc.org/resources/mapping-worksite-raids-under-the-trump-administration/ .

2. Kopan, Tal, "ICE chief pledges quadrupling or more of workplace crackdowns," CNN (Oct. 17, 2017) https://www.cnn.com/2017/10/17/politics/ice-crackdown-workplaces/index.html. Mr. Homan indicated back in 2017 that, "Not only are we going to prosecute the employers that hire illegal workers, we're going to detain and remove the illegal alien workers."

3. Bradner, Eric, "Trump's border czar says he'll need funding and at least 100k beds to carry out deportation plans," and "Worksite enforcement is coming back in a big way," he said. CNN (Dec. 18, 2024). https://www.cnn.com/2024/12/18/politics/border-czar-homan-trump-deportation-plans/index.html .

4. See "DHS Releases Worksite Enforcement Strategy to Protect the American Labor Market, Workers, and Worksite Conditions, " October 12, 2021 https://www.dhs.gov/news/2021/10/12/dhs-releases-worksite-enforcement-strategy-protect-american-labor-market-workers .

5. See https://www.ice.gov/features/worksite-enforcement .

6. See "Unauthorized Immigrants: Frequently Asked Questions," Congressional Research Service (August 10, 2022) https://crsreports.congress.gov/product/pdf/R/R47218/2 .

7. Siniavskaia Ph.D., Natalia, "Immigrant Workers in the Construction Labor Force," NAHB Economics and Housing Policy Group Special Studies (Mar. 3, 2020) https://www.nahb.org/-/media/NAHB/news-and-economics/docs/housing-economics-plus/special-studies/2020/special-study-immigrant-workers-in-the-construction-labor-force-march-2020.pdf .

8. See ICE Fact Sheet Worksite Enforcement (April 1, 2013) https://www.ice.gov/factsheets/worksite .

9. See Cybersecurity & Infrastructure Security Agency, Critical Infrastructure Sectors https://www.cisa.gov/topics/critical-infrastructure-security-and-resilience/critical-infrastructure-sectors .

10. See ICE Fact Sheet "Worksite Enforcement" (April 1, 2013) https://www.ice.gov/factsheets/worksite .

11. See https://www.ice.gov/webform/ice-tip-form .

12. See https://www.e-verify.gov/ .

13. See https://www.e-verify.gov/sites/default/files/everify/brochures/EVerifyMonitoringandComplianceBrochure.pdf .

14. See 8 USC §1324a(f).

15. See 8 CFR §274a.1(l).

16. See https://www.uscis.gov/about-us/organization/directorates-and-program-offices/fraud-detection-and-national-security-directorate .

17. See https://www.justice.gov/crt/file/798276/dl?inline .

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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