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How to prepare for heightened immigration enforcement

by Elaine C. Young

The employment-based immigration bar is bracing for heightened worksite enforcement from the Trump administration. To be sure, U.S. Immigration and Customs Enforcement (ICE) engaged in plenty of worksite enforcement during the Obama years. But the sentiment among the immigration bar, as we review updated policy memoranda and attend conferences at which government officials speak, is that compliance investigations will increase significantly, and employers need to be prepared. 

Here are steps employers can take to prepare for this increased scrutiny with the preparation of written immigration compliance policies.

Policy benefits
Federal agents often ask for copies of employer immigration compliance policies during the course of an audit or a desk review, and the existence of policies—especially if there is evidence of training and self-audits or external compliance audits—can be a major mitigating factor in the assessment of fines.

At a minimum, companies should have policies in place governing the preparation of I-9 forms and, where applicable, the use of E-Verify. Employers hiring foreign nationals who require U.S. work authorization should also have policies in place that help them determine when and how they will employ such workers.

Foreign workers can include people the employer brings to the United States for a temporary period of time, workers the employer may wish to keep long-term as permanent residents (with “green cards”), international students engaging in practical training in the United States, and so on. Employers should also have protocols for responding to audits and subpoenas, including who within the company will be notified if an ICE agent calls or appears with a subpoena.

Most employers are not required by law to have written immigration-related compliance policies. But without written policies, immigration compliance typically fails. HR personnel and other employees responsible for immigration compliance are more likely to succeed when provided with written policies on how and when to complete Form I-9, how to store an I-9, whether to retain copies of identity documents, and so on. They are also more likely to carry out the vision of the employer if they understand the policies in place with regard to the hiring of foreign nationals, including any required levels of approval before a job offer is made to someone who requires visa sponsorship. HR personnel who follow visa sponsorship and I-9 policies are also less likely to commit unfair or discriminatory immigration-related compliance violations.

Compliance team
One of the most important reasons for an employer to take the time to develop an immigration policy is that it forces the employer to create a compliance team. This team normally would include designees from the HR and legal departments, and possibly other operations managers, interacting with a workforce more likely to be an ICE audit target—such as workplaces with foreign nationals or certain industries like hospitality, restaurant, seasonal work, and so on.

A well-organized team can think through the employer’s risk profile and hiring needs carefully and develop hiring standards and process maps that fit those needs. Development of the compliance team also helps ensure the employer identifies and provides adequate resources and defines in writing how the team will respond in specific situations.

In the case of an I-9 audit, when ICE appears and issues a subpoena requiring a response in 72 hours, the employer should be spending its time assembling the subpoenaed documents and ensuring that its most recently executed I-9s are in order, not figuring out who should be involved in reviewing the I-9s, trying to determine where I-9s have been stored and whether old I-9s have been purged according to schedule, separating other personnel files from the I-9s, or finding out who has access to the payroll records requested in the subpoena. All of these issues should be addressed and documented in a written policy.

Someone on the compliance team should be familiar with unique attributes of the employer’s immigration worksite profile and have worked through possible challenges of securing and organizing the documents required in an audit to ensure the policy works as written.

Closing example
We recently assisted with an ICE audit of a nonprofit worksite primarily staffed by international students attending a nearby university. Because of the very close relationship between the audited employer and the university, the two entities had agreed that the university would pay the students while the audited employer would handle their I-9s. But because of federal protections of student information, the university could not supply ICE or the audited employer with the required payroll records without a subpoena issued directly to the university, and it certainly did not want to invite an ICE audit of its own by making the situation known to ICE.

If the audited employer had previously conducted a self-audit or engaged an expert for an external audit, this issue would have arisen immediately and could have been resolved, likely with new policies put in place. And with I-9 paperwork penalties now almost twice as high as they were in previous years, it makes financial sense to do anything possible to mitigate fines.

Elaine Young is an attorney with Kirton McConkie in Salt Lake City, Utah. You may contact her at eyoung@kmclaw.com.