Increased Immigration Enforcement Actions: What Employers Need To Know

Within the first two weeks of President Donald Trump’s second term, more than 85 executive orders and actions concerning immigration were signed. Among these were a series of orders and actions intended to significantly increase the ability of federal agencies to arrest and detain undocumented foreign nationals, and otherwise ensure employers are complying with all applicable immigration requirements. These shifts have significant consequences for employers across all sectors, making it more important than ever to stay compliant with immigration regulations.

Below are some key areas of consideration for employers.

Rescission of Sensitive Locations Policy

On Jan. 21, 2025, the Department of Homeland Security (DHS) rescinded a prior policy limiting immigration enforcement at “sensitive” or “protected” locations such as schools, churches, hospitals and social services establishments. While more routine worksite enforcement has always been permitted at “sensitive” locations, the revocation of the prior policy expands DHS’s authority to perform targeted enforcement and make arrests at these locations. Accordingly, employers in these categories should prepare themselves for increased enforcement, though they may also have special considerations.

Targeted Enforcement

U.S. Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) are two law enforcement arms of DHS. ICE and CBP have broad authority to investigate workplaces with or without warrants, and DHS has also extended immigration enforcement responsibilities to certain federal law enforcement agencies within the U.S. Department of Justice. There have also been calls from the federal government to mobilize state and local law enforcement for immigration enforcement operations.

Immigration enforcement, broadly, refers to any official action that ICE or another agency could take at a business. Targeted enforcement activities generally refer to ICE, CBP, or any of their subsidiary agencies conducting operations at a specific site, generally accompanied by a judicial or administrative warrant or subpoena. These activities could include arresting employees or seeking records/other private information.

Employers should appoint a Designated Business Representative (DBR) to lead all interactions with ICE. Ideally, the DBR should be in-house counsel as ICE may present legal documentation for the business to review. There should always be a DBR “on duty” as ICE could present itself at any time. All employees should be given the name, title and contact information of the DBR and should immediately contact the DBR if ICE or another federal agency appears at the worksite.

Employers should ensure reasonable cooperation with these investigations to uphold the integrity of their immigration programs. However, given the unannounced nature of ICE raids and the sensitive employee and company information that may be implicated, employers must be cautious not to unintentionally breach laws or privacy protections while responding to ICE agents’ requests. Schools and health care facilities should be particularly aware of any privacy protections under the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). DBRs should also be aware that certain official documents must be presented by ICE or another agency to mandate compliance.

Site Visits and Documentation Audits

In addition to targeted enforcement actions that may seek to identify and detain undocumented individuals and levy criminal or civil penalties against employers, federal agencies also conduct audits and other inspections related to immigration benefits filed with U.S. Citizenship and Immigration Services (USCIS), the Department of Labor (DOL) and State Department. One type of this on-site enforcement that may become more frequent is site visits by Fraud Detection and National Security Directorate (FDNS) and other agencies or contractors as part of the Administrative Site Visit and Verification Program.

Immigration officers carry out compliance reviews to ensure that petitioners (employers) and beneficiaries (employees) adhere to the terms of their petitions. This process involves examining the petition and supporting documents, checking public records and government databases, and, when necessary, conducting unannounced site visits to interview both the petitioner and the beneficiary.

An employer’s participation in the compliance review process is voluntary. Failure to do so, however, could result in USCIS reopening an approved petition to request the information and documentation an officer might have collected on-site. USCIS may also choose to reopen a petition after the FDNS site visit even if the employer complies.

Employers should conduct a review of their files to ensure they have complete copies of all filings submitted to USCIS or other agencies on their behalf. This also includes any Public Access Files (such as Public Inspection Files, Public Examination Files or Audit Files) in connection with any USCIS petitions or State Department application that included a Labor Certification Application. Inspections of Public Access Files are carried out by the DOL’s Wage and Hour Division.

I-9 Compliance

The Immigration Reform and Control Act of 1986, as amended, requires all employers, regardless of size, to complete a Form I-9 for each new employee hired to work in the United States. The I-9 process is used to prevent those without proper authorization from working in the U.S. An increased number of workplace audits to evaluate compliance with I-9 regulations is expected, making compliance with the I-9 process vital.

Errors found during an ICE I-9 audit can be categorized as either technical or substantive. Technical errors are minor mistakes that ICE may allow you to fix. Substantive errors, on the other hand, are more serious and occur when the error or omission causes the failure to verify the new hire’s employment eligibility at the time the form was completed. Substantive errors cannot be corrected and typically lead to fines which can range from $281 for a first offense of an I-9 paperwork violation (per Form I-9) to $27,894 for a third or subsequent offense of knowingly employing an unauthorized worker (per violation). Each violation is charged separately, making larger employers particularly vulnerable to hefty fines.

Additionally, an employer found to have knowingly hired or continued to employ unauthorized workers may be denied future federal contracts and other government benefits. In some cases, the employer may also face criminal prosecution. Recent legal actions have targeted not only company owners and executives but also lower-level managers and field supervisors.

To ensure consistency and compliance, it is best practice for every company to have a designated person or group that completes and oversees the I-9 process. This designated group or person, as well as other front office employees, should also be privy to and remain abreast of company protocol if ICE appears to conduct an audit. Moreover, employers should perform regular internal audits to correct any I-9 compliance issues prior to an audit from ICE.

SEVIS (for SEVP-Certified Schools)

The Student and Exchange Visitor Program (SEVP) is a program administered by ICE to manage information on foreign students and exchange visitors (i.e., F-1, J-1, M-1 visa holders) in the U.S. through the Student and Exchange Visitor Information System (SEVIS).

If accepted by an SEVP-certified school, foreign students may be admitted to the United States with the appropriate F or M nonimmigrant status. If accepted for participation in a Department of State-verified exchange visitor program, exchange visitors may be admitted to the United States with J nonimmigrant status. Records of these nonimmigrant admissions and continued participation in these educational programs are maintained in SEVIS. Of note in this era of increased enforcement, SEVIS also provides a mechanism for student and exchange visitor status violators to be identified so that appropriate enforcement is taken.

All SEVP-certified schools that enroll F-1, J-1 or M-1 students, or other J-1 sponsor organizations, should ensure that their use of SEVIS complies with all ICE and SEVP requirements, and that every Designated School Official (DSO) has received appropriate initial and continuing education training.

Employee Travel

A Jan. 20, 2025, executive order instructed the Secretary of State, Secretary of Homeland Security, the Attorney General and the Director of National Intelligence to undertake a review of the vetting and screening procedures for foreign nationals seeking visas and/or admission to the United States. Review and evaluation of vetting and screening procedures under the order is to be completed by Feb. 19, 2025, at which time any suspensions of visa issuance and/or entry authorization resulting from the order may be announced.

Employers should encourage their employees to discuss any planned international travel with their human resources team or immigration counsel. If an employee chooses to travel internationally, potential risks include:

1. Significant delays due to administrative processing if the employee is applying for a visa (travel authorization) while abroad
2. Refusal of a visa stamp and/or being subject to a blanket suspension of visa issuance
3. Being barred entry under blanket travel restrictions

Even if an employee does not require visa stamping while they are outside the U.S., there have been reports of valid visas being revoked without notice. As such, even those traveling with valid visas should carefully consider the risks before departing the U.S. Employers should be prepared for disruptions in the availability of their workforce and/or tax or employment law implications of employees performing work while outside the U.S. for extended periods of time.

Employer Action Items

Employers should focus on the following top-line action items:

1. Write or Revise Immigration and Worksite Enforcement Policies

• Collaborate with experienced immigration counsel to devise or update a comprehensive immigration policy that addresses:
  • Immigration sponsorship policies
  • ICE response
  • Document compliance

2. Conduct Self-Audits

• A comprehensive immigration policy should include a plan for regular self-audits of I-9s, petition copies, Public Access Files and other immigration documentation

3. Train Your Teams

• Provide regular training for HR and managers on:
  • Correct hiring procedures and Form I-9 completion
  • Anti-discrimination policies

Stay Informed

• Keep up-to-date with changes in immigration policies and enforcement priorities
• Work with legal counsel to assess how these changes might impact your workforce and business operations

For more information on I-9 compliance and internal auditing, please contact Manuela Morais, Jeff Zimskind or the Stevens & Lee attorney with whom you regularly work.