As Immigration Enforcement Ramps Up, Employers are Advised to Prepare Themselves

As was forecast, the Trump Administration is ramping up immigration enforcement actions (click here). Workplaces need to prepare for how to respond to USCIS Form I-9 audits or visits from federal law enforcement agents seeking to crack down against U.S. employers who employ undocumented workers.

DOJ Redirects Resources to Immigration Enforcement

On February 5, Attorney General Bondi issued a flurry of memoranda to Department of Justice (DOJ) employees, one of which ordered a pause in federal funding from DOJ to “sanctuary cities” that maintain policies that limit or define the extent to which local or state governments share information with federal immigration officers.[1] DOJ provides federal funds to American cities to support law enforcement, community safety and justice system improvements. Bondi’s “Sanctuary Jurisdiction Directives” memo directs DOJ to pause any funding to such jurisdictions, as well as to any non-governmental organizations “that support or provide services to removable or illegal aliens.”

Bondi’s memo also reiterates the directives in the previously issued Bove Memorandum to investigate state and local jurisdictions. In keeping with several immigration-related executive orders issued by President Trump, then-acting Attorney General Emil Bove issued a memorandum for all DOJ employees on January 21, detailing “interim policy changes” that direct resources to immigration-related investigations and prosecutions.[2] Both memos also direct DOJ’s Civil Division to work with the department’s “newly established Sanctuary Cities Enforcement Working Group” to “take legal action” against “state and local laws, policies, and activities” that clash with the administration’s immigration policies.

On February 6, the Department of Justice acted in keeping with its new policy, suing the City of Chicago, the state of Illinois, and Cook County in the United States District Court for the Northern District of Illinois. The lawsuit seeks to prohibit the enforcement of state and local laws “that are designed to and in fact interfere with and discriminate against . . . federal immigration law.”

The Bove Memo further directs federal prosecutors to pursue all criminal immigration-related violations. The memo directs all United States Attorneys’ Offices to report any declination decisions on an urgent basis to the Attorney General and Deputy Attorney General. Prosecutors were further directed to report, on a quarterly basis, office statistics on the number of investigations, prosecutions, convictions, and removals to DOJ leadership.

Prosecutors previously tasked with investigating and prosecuting organized crime, drug enforcement, and firearms offenses, “shall” shift their focus away from violent crime, to “devote significant time and attention to the investigation and prosecution of” immigration offenses.

Federal agencies are directed to identify and report within 60 days all “non-citizens located illegally in the United States” to their U.S. Attorney’s Office, and disclose such information to DHS unless it would impact an ongoing investigation. Any exceptions must be disclosed to the Attorney General. The disclosure to DHS is “for the sole purpose” of facilitating removals, enforcement actions, and prosecutions. If “state and local actors” impede these efforts, prosecutors are directed to investigate them for prosecution.

What Employers Need to Know

These directives to focus federal resources on immigration enforcement are expected to soon manifest themselves in workplace raids and Form I-9 Notices of Inspection.[3] Many employers will work with a qualified immigration lawyer to prepare for an Immigration and Customs Enforcement (ICE) raid or I-9 audit now. Companies can establish I-9 compliance programs, develop a written plan to handle ICE visits, and train employees on how to handle a raid before it occurs.

A written response plan and employee training to handle I-9 audits and ICE raids is advised. The following is a list of some of the considerations companies should weigh, in consultation with counsel.

• Employers can preemptively conduct their own internal I-9 audits.
• Companies can designate a company representative and spokesperson to serve as designated points of contact with ICE, and to be authorized to communicate with ICE.
• In the event of a visit from agents, companies can first determine what agency the agents are with, whether they are executing a judicially obtained search warrant, the scope of the warrant, and obtain the agent’s name and contact information. Immigration officers are free to enter public areas, but must have a valid judicial warrant signed by a judge, for any non-public areas.
• Companies may immediately notify legal counsel so they can provide advice, or if feasible, be present during the search. Counsel can help ensure it is a valid search warrant, and that the materials and area to be searched are followed.
• The search warrant will indicate the locations that can be searched, and the items that may be searched for and seized. The company may take note of those areas and calmly make any objections to the agent if they go outside the scope of the warrant.
• Employers may follow agents and document where they search, and ask for a copy of items to be seized, as well as a copy of the search inventory at the conclusion of the search.
• ICE agents may require that employees not leave the building, and may move them into an area for questioning. Employees have their own rights they can choose to exercise, such as the right to remain silent and the right to an attorney. Employers are not permitted to direct employees not to answer, but may advise them of their rights.
• Company representatives may be cautioned not to make any statements to agents without consulting with an attorney.

Contact your Williams Mullen team member to discuss your company’s response plans and Form I-9 practices and compliance efforts.