Employers may experience new challenges as the Trump Administration continues to expand its immigration enforcement efforts. Employers can be subject to criminal penalties if a foreign national employee inadvertently falls out of legal status. Employees with family members who have entered the United States illegally can be subject to severe fines and criminal penalties for harboring their undocumented relatives. Already, news reports are revealing that some employees have stopped reporting to work for fear of being detained or deported. These are just a few of the consequences of two recent memoranda issued by the U.S. Department of Homeland Security (DHS) implementing President Trump’s January 25 Executive Orders.

The memoranda offer a sweeping expansion plan for interior immigration enforcement, removal operations, and border security measures. The comprehensive plan defines enforcement priorities exceedingly broadly, placing all unauthorized foreign nationals at risk of deportation, including families, long-time residents, and temporary visa-holders. The DHS initiative seeks to advance these priorities by simultaneously widening the net of targeted individuals for deportation, while broadening the authority to enforce federal immigration law among local and state agencies.

State and local law enforcement officials have general authority to investigate and arrest violators of federal immigration statutes without prior DHS knowledge or approval, as long as they are authorized to do so by state law. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act to encourage state and local agencies to participate in the process of partnering with federal agencies to enforce federal immigration laws. Two decades later, the Trump Administration is now reviving this partnership program, relying on the 1996 legislation to encourage local jurisdictions to cooperate with federal officers in the widespread apprehension, detention, and criminal prosecution of “removable” aliens.

The DHS guidance defines “removable aliens” using a broad brush, encompassing foreign nationals who “have committed acts that constitute a chargeable criminal offense.” Moreover, the definition can be applied to include all undocumented individuals under the presumption that they committed the chargeable offense of improper entry. As such, all persons who entered the United States without inspection become priorities for deportation.

Under this program, border patrol and customs officials are directed to execute the assessment and collection of all legally authorized fines and penalties against undocumented immigrants as well as those who facilitate their unlawful presence. Employers are alerted that this provision may indicate increased enforcement of existing fines and criminal penalties under federal regulations related to harboring aliens as well as employer recruitment and hire of illegal or undocumented workers.

Likewise, the new DHS policy calls for the deportation of any individual who “directly or indirectly” facilitates the smuggling or trafficking of a foreign child into the United States. According to this directive, undocumented parents and family members “often pay smugglers” to bring their foreign national children into the United States, and by doing so “conspire to violate our immigration laws.” DHS recommends placing such parents and relatives into removal proceedings and referring them for criminal prosecution, “[r]egardless of the desires for family reunification, or conditions in other countries.”

Employers can expect to face additional scrutiny of their worksites in the United States as part of the government’s effort to enforce immigration laws and protect national security. To minimize adverse consequences, employers should:

  1. Recommend that employees consult with an immigration attorney if they have family members in the U.S. who have entered the country without inspection.
  2. Verify that all employees, regardless of their nationality, hired on or after November 6, 1986, are authorized to accept employment in the United States.
  3. Establish a policy or procedure for monitoring the status of foreign national employees to ensure maintenance of lawful immigration status throughout their employment.
  4. Stay informed of the proper time to begin the process of extending or renewing work status for employees in order to avoid a lapse in employment authorization.
  5. Develop an employee training system to assure that assigned employees understand the compliance policy so that a consistent, correct application of I-9 verification procedures occurs.
  6. Become aware of instances where the employee may produce receipts or alternative documentation in lieu of acceptable documents for purposes of completing Form I-9.
  7. Have the employee contact an immigration attorney to move forward on applying for a green card or U.S. Citizenship. Individuals in those categories are exempt from reverification.
  8. Be aware of anti-discrimination issues such as requiring specific documents and insisting on a social security number.
  9. Contact an immigration attorney if an employee engages in any activity that may impact their work status.

Employers wanting more information can click here for a more detailed summary.