When President-elect Trump takes office next week, he has promised to launch what his aide Stephen Miller called a “shock and awe blitz” of executive orders and actions that will target millions of immigrants and their families. Employers need to be ready to respond to this renewed emphasis on immigration enforcement.
History of Raids on Businesses
Will there be a return to the kinds of raids on businesses that we saw during President Bush’s second term? Time Magazine reported that President-Elect Trump told the magazine in an interview that he wants a return to United States Customs and Immigration Enforcement (“ICE”) raids of businesses. “The strategy, which he also ramped up in his first term, aims to increase the visibility and enforcement of immigration laws in everyday settings, targeting industries that frequently employ unauthorized workers. Trump has suggested that these raids will not only deter unauthorized employment but also lead to significant labor market shifts, benefiting American workers,” Time reported.
For those who don’t remember one of the most infamous ICE enforcement actions during President Bush’s administration, in December 2006, the giant meatpacking plant formerly owned by Swift and now owned by JBS in the Texas Panhandle town of Cactus, was one of the targets of the largest single-site workforce enforcement action in U.S. history. ICE officers in riot gear and armed with assault rifles arrested nearly 300 workers, more than 10% of the population of Cactus. School children were left with no one to pick them up or care for them at home because both parents were arrested in the raid. The community of Cactus was decimated. Seven months later, ICE batted clean up by conducting another, smaller raid on the same plant in Cactus.
The town of Cactus eventually recovered, but the JBS plant is still almost completely staffed by immigrants, some of whom may be at risk if another raid occurs. Many noncitizen workers there are hired to come to the U.S. to work on legal visas, but President Trump has threated even those migrants who are in the country legally, despite that fact that many workers born in the United States don’t seem to want the jobs offered at JBS. If enforcement actions are actively pursued by ICE in Cactus or elsewhere, it will be up to the employer to prove that each of its workers is legally eligible for employment in the United States.
Holding Business Owners and Managers Responsible
After the furor that such raids caused during the Bush administration, President Obama took a different tact. His administration pursued the employers, not the workers. Some of the 1100 criminal arrests ICE made in 2008 resulted in charges against owners, managers, supervisors or human resources directors who knowingly hired ineligible workers, failed to diligently check employment eligibility or just ignored the requirements.
The owners and managers of the businesses were targeted because it is the employer’s responsibility to certify that each employee is eligible to legally work in the United States. This is done by reviewing the employee’s eligibility documentation (such as passports, work permits, social security cards, driver’s licenses, etc.) within the first three days of employment and properly completing the Form I-9 to show compliance.
How Employers Can Prepare Now
Let’s say that you don’t believe that you employ any ineligible workers. You may still have documentation problems. Just for incorrectly completing the I-9’s, even if your workers are all actually eligible to work in the United States, you can be fined up to $2789 per worker.
Now is the time to audit your practices to prepare for the pending immigration enforcement emphasis by the new administration. Go through your personnel files to check for these issues:
- Have you done your proper recordkeeping of I-9 forms? Employers must retain and store Forms I-9 for all current employees, and for three years after the date of hire, or for one year after employment is terminated, whichever is later for former employees.
- Does every file for every single current employee and former employees who worked for you at any time in the last three years contain a properly completed I-9 form filled out when the employee first started working for you? I can’t tell you how many employee files I have seen that don’t have an I-9 form or don’t have both sections 1 and 2 completely filled out and signed.
- Did you photocopy the documentation the employee produced that you are relying on to certify that the employee is eligible to work in the United States? Copies are the best way to show why you believed the documents were valid. Double-check these. Upon a closer look, you may see slight irregularities that should have caused you concern at the time. Compare the documents you received to the genuine articles in the Employer’s Handbook provided by USCIS on its website (click here). I have seen Social Security cards that are crooked, as if xeroxed improperly, legal resident cards that are not the right color (most are not green), and many other noticeably suspicious documents when I have reviewed photocopies and compared them to the USCIS Employer’s Handbook.
- If you have hired any employees since August 1, 2023, have you been using the updated I-9 form, form? (Click here for a pdf copy). The new expiration date for that form is May 31, 2027, but for now, employers may continue using older forms bearing the July 31, 2026 expiration date.
- As of July 21, 2023, if you hire(d) remote workers, you must still physically examine their documents (not photocopies) unless your business is enrolled in E-Verify (which comes with many problems of its own). The remote worker verification rules were relaxed during the COVID pandemic, but now employers must either meet personally with the new remote hire to verify the actual documents, hire a verification company or lawyer in the remote location to verify the documents, or even have two new employees in the same location verify each other’s documents (not recommended unless the verifying employees know exactly what to look for or you walk them step by step through the process as it is happening).
- Have you calendared the dates necessary for reverification if your employee has work verification documents that will be expiring? This doesn’t apply to identification documents like a driver’s license, but does apply to eligibility documents like passports and legal resident cards. Upon reverification, did you fill out Supplement B (formerly Section 3) of the I-9 form?
Chances are high that your internal I-9 audit uncovers some problems with your I-9 forms. The time to correct those is before ICE serves you with a notice of inspection, particularly if your company is engaged in one of the businesses ICE frequently inspects because of past violations in these industries: agriculture, cleaning services, factories, slaughterhouses, construction companies, hotels or similar industries.
Of course, if you find I-9 form problems, there are very specific legal requirements on how to correct those. You cannot just throw out the incorrect I-9 forms and start over. And do not begin randomly firing employees whom you now suspect may not be eligible to work for you. This is the time to contact an employment attorney for help before you make any decisions that could make things worse.