Is Trump the New Obama?

Last year, before President Trump took office, the courts struck down the updated regulations affecting the white-collar exemption and the advice exception issue. When President Trump took office, he instructed his administration to take limited, if any, action to appeal the rulings. But not so for the immigration issues. To the contrary, President Trump has already taken action with respect to immigration.

Trump, Immigration and Employers

On Jan. 25, 2017, President Trump issued an Executive Order titled “Enhancing Public Safety in the Interior of the United States.” In this wide-ranging Executive Order, President Trump set out the policy of the Executive Branch with respect to immigration; set enforcement priorities; and provided for a significant increase in the number of immigration officers. We believe this will significantly affect employers.

Specifically, President Trump's Executive Order promises to “Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens … ” and “ Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States.” In furtherance of these and other policies set forth in the Executive Order, President Trump directed agencies “to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.”

In conjunction with these goals, Section 7 of the Executive Order instructs the Director of U.S. Immigration and Customs Enforcement (ICE) to “take all appropriate action to hire 10,000 additional immigration officers.” Considering ICE employed nearly 12,000 agents in 2016, this is an increase of over 80%! This enormous surge in immigration officers will mean the government will have tremendous resources at its disposal to crack down on employers who hire illegal aliens. We believe this crackdown will take two main forms.

Worksite Raids

Under the Trump Administration, we are already seeing a focus on worksite raids by immigration agents. Earlier this year, news outlets reported that ICE conducted raids in homes and workplaces in multiple states. For instance, the Chicago Tribune reported a statement by ICE that its worksite enforcement program will continue “the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration.”

We expect this trend to continue. Along with possible repercussions stemming from being caught employing unauthorized workers, businesses may also experience loss of employees from the raids (and fear of more raids from other employees with immigration concerns), and loss of customers due to the bad press of being caught in government raids.

Continued Focus on I-9 Audits

Another notable provision of the Executive Order calls for the Secretary of Homeland Security to “ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.” This last part is particularly noteworthy for employers.

Penalties for committing employment-related immigration violations can be steep. Penalties for violating the law prohibiting hiring or continuing to employ individuals knowing they are (or have become) not authorized to work in the United States can range between $548 and $4,384 per unauthorized alien for businesses that are first-time offenders, between $4,384 and $10,957 per unauthorized alien for second time offenders, and between $6,575 and $21,916 per unauthorized alien for businesses committing any further offenses.

In addition, there can also be penalties for paperwork violations —€ improperly filling out immigration-related employment documents. Failing to comply with Form I-9 employment verification requirements can result in fines between $220 and $2,191 per form. Even failing to inform the Department of Homeland Security of a “Final Nonconfirmation” of an employee's employment eligibility can result in a $763 to $1,527 penalty per violation. A Final Nonconfirmation is a final case result in E-Verify which indicates E-Verify could not “verify an employee's employment eligibility after an employee has visited an SSA field office or contacted [the Department of Homeland Security].” Of course, criminal penalties of $3,000 per unauthorized alien can also be assessed against employers who engage “in a pattern or practice of hiring, recruiting or referring for a fee unauthorized aliens” are also possible.

Employment-related immigration penalties can add up quickly. For instance, Abercrombie & Fitch famously paid over $1 million to ICE due to Form I-9-related issues.

Based on the Administration's first 100 days, employers should take note. It is obvious the current Administration intends to continue or even expand further the increased rate of Form I-9 audits which began during the Obama Administration. In addition to stepping up worksite enforcement raids, President Trump's immigration strategy will also include a focus on investigating employers to ensure compliance with immigration-related verification, documentation, and record-keeping requirements.

What Should Employers Do?

We believe this Executive Order indicates a two-pronged approach to immigration enforcement in the employment context by the Trump Administration. Employers should expect both an increase in worksite enforcement raids and a significant amount of immigration-related audits. The 10,000 additional agents that the Executive Order empowers ICE to hire should provide the needed manpower to carry out this ambitious plan. To prepare, employers should consider conducting an internal audit to ensure their immigration-related practices are in compliance with all applicable laws and regulations.

Of course, you must take care not to conduct an audit in a manner that could be seen as discriminatory or retaliatory —€ choosing which employees to audit based on citizenship status or national origin, for instance, could come with its own negative consequences. And all of this must be done in a way to avoid creating a record of non-compliance that a government audit would immediately uncover.

Last year, ICE released “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” Employers would do well to review and familiarize themselves with it. Additionally, employers should also seek the advice of competent counsel to ensure their self-audits are useful without creating the smoking gun that the government audits are hoping to find.

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Robert G. Brody is the founding member of Brody and Associates, LLC, a Labor and Employment Law firm that represents management. Alexander Friedman is an associate with the firm. The views expressed in this article are those of the authors and not necessarily those of their clients or other attorneys at the firm.