Preparing for Immigration Worksite Enforcement

Major takeaways summarized

• Understand your obligations under immigration law and if you're unsure, consult counsel.
• Monitor updates on immigration law, because things change very quickly. 
• Draft comprehensive policies, review them regularly and conduct training for employees. 
• Audit yourself before you're audited. Are your I-9 forms in shape?
• Plan for workforce audits and have worksite protocols in place. 

Rebecca Winterscheidt from the law firm of Snell & Wilmer discussed the impact of President Trump's immigration policies on businesses during a live webinar on Wednesday, Feb. 19, hosted by the American Subcontractors Association. Winterscheidt emphasized the rapid changes in immigration enforcement since this administration took office. Key points included the potential for increased worksite audits and raids and the importance of compliance with I-9 and E-Verify requirements.  

E-Verify is an online system that informs employers of the eligibility of their employees to work in the United States. Form I-9, Employment Eligibility Verification, is a form used by employers to verify the identity and employment authorization of new hires in the United States.   

Winterscheidt highlighted the need for companies to have clear immigration policies, conduct regular self-audits and be prepared for legal fines if they do not comply with E-Verify requirements and if their I-9s for employees are not in order. The webinar also covered the importance of educating employees on their rights during worksite raids. High risk industries include construction, hospitality, food processing, agricultural and manufacturing.  

NGA members received access to the live webinar thanks to NGA’s alliance with the American Subcontractors Association (ASA).

What to know 

The U.S. has a three and ten-year ban, which is when individuals who stay illegally, whether entering the country illegally or overstaying a visa, for more than 6 months but less than a year face a 3-year reentry ban, while those staying for a year or more face a 10-year ban on re-entering the country.  

Winterscheidt says this poses a problem because in order to change your citizenship status while living in the U.S., you must already be here lawfully, either with a valid work authorization or visa, and if you're not then you need to leave and change your status abroad. This results in hundreds of thousands of people remaining in the U.S. illegally because they know if they leave, then they will be barred from returning for 3-10 years, which has resulted in the high number of undocumented workers in the country.  

President Trump's plans for immigration include "the largest deportation operation in U.S. history," Winterscheidt says, which not only involves using Immigration Customs Enforcement, but also the National Guard in collaboration with state officers and agents. Trump also has plans for sweeping worksite audits and raids, which was the emphasis of the webinar, including I-9 audits. 

Currently, 22 states require some public or private employers to E-Verify all new employees, including Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia and West Virginia. Employers located in one of these states who fail to E-Verify employees risk being fined. 

What employers can do 

Winterscheidt advised employers to implement a policy on employing non-citizens as part of the company handbook if they do not already have one. This policy should clearly state that the company will only hire individuals with work authorization and include a provision prohibiting discrimination based on national origin. The policy should then be disseminated to all employees, which can be done without reissuing the existing handbook. She said that managers should be notified that they will be terminated if they knowingly hire unauthorized workers.  

"It doesn't have to be anything long. It can be as simple as 'Here at this company, we abide by all immigration laws, we require you to fill out an I-9, we utilize E-Verify and we only hire individuals who can establish they have authorization to work for this company.' Something pretty simple," says Winterscheidt. Winterscheidt adds that if you get audited, you're going to need as many favorable things on your side to try to negotiate fines with ICE, and an official immigration policy is one of those things.  

Winterscheidt says that companies should audit themselves to confirm compliance and catch any missing I-9s or information within an I-9 before ICE can come knocking. "Offense is the best defense," says Winterscheidt. 

If ICE arrives on your jobsite, employers should ensure that all employees are accounted for and not hiding or fleeing from the site, she says. A manager or supervisor should follow the agent on the jobsite and take note of any items that are seized and what else ICE agents do while there. Winterscheidt says employers should talk with an attorney immediately after a worksite raid.