In recent weeks, the developing landscape on immigration enforcement has dominated the media. In a quick refresh of an internet page, headlines alert us to new reports of potential immigration crackdowns, increases in deportations, confusion at ports of entry, legal challenges to the Executive Orders issued last month, and additional Executive Orders to potentially follow. On February 20, 2017, Department of Homeland Security (DHS) Secretary John Kelly issued two Memoranda (“Implementing the President’s Border Security and Immigration Enforcement Improvement Policies” and “Enforcement of the Immigration Laws to Serve the National Interest”) that outline how DHS plans to implement the Executive Orders on border security and interior immigration enforcement signed by President Trump on January 25, 2017. While the DHS Memoranda (or guidelines) do not speak directly to the integrity of foreign worker visa programs, they may prove a harbinger to US multinational employers of aggressive enforcement directives that may underpin the business-related aspects of the current administration’s overarching immigration policy.
Immigration enforcement priorities are not new. Prior administrations focused efforts on coordinated worksite raids and deportations of those convicted of serious crimes. The Executive Orders and DHS guidelines can be viewed as an extension of immigration enforcement efforts of past eras. What is notable about the recent Executive Orders and DHS guidelines is that they cast the net much wider on who is considered a priority for removal from the US. The recent shift in immigration enforcement priorities has a greater potential to impact employers, their workforce and family members who violate their US immigration status.
Under the new Executive Orders and DHS guidelines, apart from recipients of Deferred Action for Childhood Arrivals (DACA), all those in violation of immigration laws may be subject to immigration enforcement including arrest, detention and/or removal from the US. DHS will not set aside any class or category of unauthorized immigrants in the US from enforcement. The new DHS guidelines provide that Immigration and Customs Enforcement (ICE) should continue to prioritize categories of unauthorized immigrants ordered to be removed from the US starting with those convicted of a criminal offense. However, any unauthorized immigrants who “have committed acts that constitute a chargeable criminal offense” or “otherwise pose a threat to public safety or national security” may also be deported.
Other key points under the DHS guidelines include:
- Eliminating policies that facilitate the release of unauthorized immigrants apprehended and detained at the border;
- Hiring 5,000 additional Border Patrol agents and 10,000 ICE agents;
- Expanding a program that authorizes DHS to designate immigration enforcement authority to state and local law enforcement agencies;
- Identifying and allocating available resources for the construction of a border wall;
- Expanding the authority of DHS to expedite the removal of unauthorized immigrants in the US who have been continuously present in the US for two years. (Previously, expedited removal has applied to those unauthorized immigrants encountered within 100 air miles of the border and 14 days of entry, and unauthorized immigrants who arrived in the US by sea other than at a port of entry.);
- Returning unauthorized immigrants to contiguous territories pending a formal removal hearing before an immigration judge;
- Applying the use of parole into the US “sparingly” in cases of urgent humanitarian age or significant public benefit; and
- Instructing US Customs and Border Protection (CBP), ICE, and US Citizenship and Immigration Services (USCIS) to issue guidance on the assessment and collection of civil fines and penalties from unauthorized immigrants in the US and those who facilitate their unlawful presence in the US.
There are still several questions to be answered on how the Executive Orders work in practice. Indeed, it is unclear whether the DHS has sufficient resources to implement the initiatives outlined in the Executive Orders and DHS guidelines.
Nevertheless, the Memoranda are instructive to US multinational employers in their focus on detaining and/or facilitating removal of unauthorized immigrants in the US, expanding the scope of those who may be deported to include those who may have been previously deemed low enforcement priorities, and providing DHS with additional resources including state and local law enforcement agencies to enforce immigration laws. Any violation of immigration law has the potential to initiate removal proceedings. US based multinational employers should take heed of the strict immigration enforcement initiatives driving the Executive Orders and related DHS guidelines.
To reiterate, changes to ensure the integrity of foreign worker visa programs have not been announced. However, given the strict enforcement agenda the Executive Orders and DHS guidelines set forth, US employers may want to consider a corporate immigration compliance program that includes the following best practices:
- Conduct an audit of/assess overall compliance of I-9 Employment Eligibility Verification Forms, use of E-Verify and maintenance of Public Access Files for those employees on H-1B visas;
- Establish or review protocol to handle a worksite visit by DHS;
- Review the activities of frequent business travelers to confirm that they are consistent with business visitor status;
- Establish a point of contact for employees who may encounter difficulty at a port-of-entry.