Blog: The California Workplace Advisor

We all know immigration enforcement is a top priority for the new Trump administration. What does this mean for employers and for colleges and universities?

1. I-9 audits will skyrocket.
2. ICE worksite enforcement actions will escalate.
3. Schools, medical facilities, churches and courthouses no longer are protected from immigration enforcement.
4. Work authorization may end abruptly, through no fault of the employee.
5. ICE will try to bring criminal charges whenever supportable, against workers and management.

Each of these items is discussed below, followed by advice to implement now so you’re as prepared as you can be.

I-9 audits will skyrocket. ICE plans to issue 6,000 I-9 audit notices a month. This is a major increase from past practice; ICE aspired to do as many as 12,000 I-9 audits a year in the past. All employers should do an I-9 self-audit now, and E-Verify employers should also do an E-Verify self-audit, to make sure you’re ready for an ICE audit.

ICE worksite enforcement actions will escalate. This is a major priority for the US Department of Homeland Security (DHS). National Guard troops may be deployed to worksites to support ICE officers, so ICE officers can spread out to accomplish more raids. This week the Trump leadership imposed a quota on ICE, requiring each field office to arrest at least 75 individuals per day. To do this, ICE will cast a wide net and target known or suspected unlawful employment. ICE I-9 audits that revealed compliance problems, and late-created or missing E-Verify records, can be expected to trigger worksite actions.

Schools, medical facilities, churches and courthouses no longer are protected locations. DHS rescinded the “sensitive locations” memo last week, which outlined a DHS policy dating back to at least 2011 when it was published in writing by the Obama administration. Under the sensitive locations policy, ICE avoided immigration enforcement actions at schools, medical facilities, churches, courthouses, and related sites. Now ICE officers may target individuals in these locations where the person’s presence may be predictable because they are a teacher, student, volunteer, patient or family of a patient, regular attendee or congregant, or witness or victim in a criminal case.

Work authorization may end abruptly, through no fault of the employee, and employers will have to remove them from the workforce. Policies that have allowed work authorization to continue for long periods while immigration cases are adjudicated by DHS or US Department of Justice (DOJ) are being cancelled, or not renewed when they expire.

ICE will try to bring criminal charges whenever supportable, against workers and management. This is the new approach ICE is saying it will take. If there’s any indication the employer had knowledge of unlawful employment, or should have known, or ignored indications of unlawful employment with disregard for compliance, you can expect ICE will try to bring criminal charges. Meanwhile the robust anti-discrimination rules DOJ long has enforced may no longer protect employers who gave employees the benefit of the doubt, because DOJ’s new mandate does not include anti-discrimination.

Here’s what we recommend doing now to prepare:
I-9 Self Audit. Plan and implement an I-9 self-audit. You can scope the audit to be reasonable and comprehensive, and make corrections carefully within the applicable self-audit rules, to avoid making matters worse. If the employer is in E-Verify, an E-Verify self-audit is critical too. Late-created or missing E-Verify records may trigger audits or even worksite enforcement actions. If a third party holds your I-9s, ask them for copies now so you have them in hand for timely response to an ICE audit, and all you have to obtain from the third party is the I-9s for subsequent new hires. Employers are 100% responsible for their I-9 compliance even if third party service providers are involved. ICE does not offer leniency if the audited employer is waiting to receive copies of its I-9s maintained in the custody of a third party, and the companies who maintain I-9s may be inundated with high numbers of audit requests from employers they serve. There have been situations in which third party providers haven’t had the capability to produce actual I-9s on the correct form version from data they collected from their client’s employee, let alone produce the I-9s within the three-day time frame for responding to an ICE audit.

Develop a site-specific policy for how to respond to ICE visits. Identify the access points where ICE officers could try to enter your location. Identify who the officer would encounter at those locations. Make sure those greeters know who to call in management if law enforcement officers arrive. Other federal and some local officers are supporting ICE in worksite actions, so don’t limit this policy to ICE officers or even DHS officers more broadly. Educate management about the nature of ICE warrants, subpoenas and I-9 audits, so they know what to do.

Educate your workforce about their rights. The American Civil Liberties Union publishes excellent Know Your Rights resources which explain the rights of individuals who are physically present in the United States, whether at work, at home, in a vehicle, at a public transit station, or in other public or private spaces.

Here are some other risk factors to consider:

• Using contracted employees, and the co-employer maintains the I-9s.
• Lax immigration compliance culture at the worksite, such as acknowledgement of unlawful employment within the workforce, without consequences
• Late E-Verify records, which the government can compare to the employer’s tax records to find evidence of failure to make timely E-Verify entries.

State law for individuals in CA: California law imposes specific duties and protections around ICE visits and I-9 audits. So it’s essential for California organizations to educate their personnel on how to respond if ICE or other immigration law enforcement officers arrive at the worksite. California law requires employers to provide specific notices to their entire workforce if there’s a routine I-9 audit. California law does not allow employers to give immigration officials access to nonpublic areas of the workplace unless they present a judicial warrant (not an administrative warrant). Anyone in a position to allow officer access to a California workplace must be informed that they can’t “consent” to allow immigration officers entry to nonpublic areas. To ensure compliance at the worksite, you need training and policy that is California-specific. The California Attorney General has issued guidance and forms which are helpful but should only be followed within California.

Please note that if parties outside California try to follow the California AG’s guidance in dealing with ICE outside California, you can expect ICE will treat this as obstruction of justice in the absence of the state law protections in California.

If you have questions about how to prepare, or you’d like to have help with planning, policy development or training, please contact Leigh Cole, Immigration Counsel, lcole@hkemploymentlaw.com, (415) 835-9001, or your employment lawyer at Hirschfeld Kraemer LLP.