President Donald Trump’s initial days in office saw a series of executive actions aimed at increasing immigration enforcement. Employers across all industries, in both the private and public sectors, should be prepared for a possible rise in worksite investigations (raids) and arrests. Immigration Customs Enforcement (ICE) investigations often begin with tips or leads from various sources and during the first Trump administration, the industries that faced the most scrutiny were those that tend to have the highest concentration of undocumented workers. Targeted industries include hospitality, agriculture, food processing, landscaping and construction. Specifically, nearly 30% of U.S. construction workers are estimated to be undocumented.
ICE cites public safety, national security, and critical infrastructure as the sectors in which they focus their investigations. Critical infrastructure industries include:
- Manufacturing;
- Agriculture;
- Communications;
- Energy Production;
- Commercial Facilities;
- Financial Services;
- Government Services and Facilities;
- Healthcare and Public Health;
- Information Technology;
- Water Treatment Facilities;
- Chemical and Nuclear Material Handling; and
- Transportation Systems.
Key agencies involved in immigration-related audits and enforcement include:
- ICE/Homeland Security Investigations (HSI): Conducting Form I-9 audits and worksite enforcement actions or raids, sometimes in collaboration with other law enforcement.
- USCIS Fraud Detection and National Security Directorate (FDNS): Carrying out compliance audits regarding visas, petitions, and immigration benefits.
- Department of State: Conducting fraud investigations related to visas and immigration benefits.
- Department of Labor’s Wage and Hour Division (WHD): Investigating I-9 compliance and the wages and working conditions of nonimmigrant workers, such as those on H-1B or H-2A visas.
To mitigate risk and stay prepared for potential audits or enforcement actions, companies should consider the following strategies:
- Develop a company protocol for immigration enforcement: Prepare a clear process for responding to immigration enforcement requesting access to company records or employees. Designate individuals within the company to handle communication with government agencies, ensuring a streamlined and effective response when contacted.
- Provide training for management: Train key employees on how to handle situations involving search warrants or government inspections, ensuring they are equipped to manage the situation effectively.
- Conduct an internal audit of I-9 forms: Conduct an audit to ensure compliance with immigration requirements for both immigrant and nonimmigrant workers, reducing potential liability and penalties. This should include a review of DOJ/DHS internal audit guidelines.
- Make sure compliance documents are accessible: Maintain an accessible file with essential corporate documents, financial records, and a list of sponsored employees to facilitate quick responses during government inquiries.
In the event that HSI, FDNS officers or other compliance agents arrive at the worksite, companies should take the following steps:
- Notify the designated company representative: Have front of house staff tell the compliance officer they are contacting the designated company representative who will coordinate with the officer.
- Request officer identification: Ensure the designated contact collects the compliance officer’s business card or contact information.
- Follow established access protocols: Be mindful of both federal and state privacy laws when deciding how to grant access to the site or employees.
- Document all communications: Keep accurate records of all information provided to officers, including verbal responses, to ensure clarity and compliance and arrange for there to be a witness to communications with officers.
- Establish a policy for accessing employee information: Ensure there is a formal procedure for sharing employee data in the event of an investigation or audit.
- Consult with either in-house or external counsel immediately: If a subpoena or notice of inspection is received, contact in-house or external legal counsel immediately to address the matter.
With immigration enforcement only set to increase, businesses must take proactive steps to ensure compliance and minimize risk. Worksite investigations and audits can have significant legal and financial consequences, particularly for industries with a high concentration of undocumented workers. By implementing strong internal protocols, conducting regular compliance audits, and training key personnel on how to handle government inspections, employers can better navigate the evolving enforcement landscape.