ICE Enforcement Actions: Preventative Steps Companies Should Consider Now

The US administration is prioritizing immigration enforcement, including through investigations and large-scale raids at prominent multinational corporations. Immigration enforcement actions are currently the subject of significant media coverage and present legal and public relations risks. Given this heightened enforcement environment, businesses should consider taking preventative compliance measures now—before US Immigration and Customs Enforcement (ICE) agents appear at their door.

Employers will be best positioned to protect their businesses from disruption and safeguard their employees by ensuring compliance with immigration law. In this fast-paced area, it will be important to regularly consult with your immigration counsel, as what was the case yesterday, may not be tomorrow. Below are some important steps to follow:

• Conduct Privileged and Confidential Internal Audits: Businesses should consider engaging counsel experienced with internal immigration employment investigations to review their immigration and visa practices and protocols. By engaging outside counsel to conduct the internal audit, businesses will benefit from the attorney-client privilege and work product doctrines as to the conduct and results of the internal investigation when determining the status of their compliance with immigration law. Businesses will also benefit from expert guidance on how to correct any prior missteps and improve their immigration compliance going forward.
• Ensure I-9 and Documentation Compliance: Maintain accurate, complete I-9 forms for all direct employees. Store records properly so they are retrievable and auditable and ensure any electronic I-9 records are supported by a compliance audit trail. In addition to conducting regular internal audits of I-9s and work authorization, provide effective expert-led training not just for HR, but also for site supervisors and subcontractor managers who may have I-9 responsibilities.
• Demonstrate Precise Visa Compliance: Companies should be careful not to misuse visa statuses for their employees. For example, companies should be careful not to misuse visitor visa status for individuals who are working in the United States. Particularly in a heightened enforcement environment, employees with a visa—but the wrong visa—may find themselves hauled off the worksite in a public raid. Precise compliance with visa requirements now may prevent substantial disruption later. Accordingly, companies should perform immigration/visa compliance risk assessments before major projects, including mapping out foreign specialist roles, entry requirements, and appropriate visa routes. Engage immigration counsel early to spot and resolve red flags.
• Be Aware of the Risks Associated with Relying on Contractors: Many companies rely on third-party employers to provide independent contractors to staff their businesses, and there can be numerous benefits to doing so. On the other hand, relying on a third-party employer that employs individuals who are undocumented, abusing their visa status, or otherwise not in compliance with labor or immigration laws can create significant public relations and business disruption issues for companies. Recent media coverage of various actions against employers demonstrates that media focus likely will be on the household name, even if that company relied on a third-party staffing agency. Furthermore, companies that rely on third-party staffing agencies that fail to comply with labor and immigration laws may face civil or criminal penalties if those companies were willfully or knowingly proceeding with independent contractors who were violating the law. Effective subcontractor and vendor oversight includes strong immigration compliance representations, certifications and warranties in contracts, and enforcement of provisions that permit the company to monitor and audit subcontractors’ compliance practices.
• Avoid Association with Individuals Violating Immigration Laws: Employers that associate, even indirectly, with individuals who are engaged in trafficking, harboring, or transporting undocumented workers and/or with individuals engaged in creating fake documents for undocumented workers may become the subject of an immigration investigation and enforcement action. An internal immigration compliance audit can help employers identify and minimize these risks.
• Establish a Crisis Management Plan: Crisis management plans are a crucial tool and should be tailored to a business’s unique structure, goals, and risks. By establishing a crisis management plan before the crisis strikes, your business will be best positioned to respond rapidly.

HOW WE CAN HELP

Immigration enforcement is a top priority of the US administration, and businesses should consider taking steps to prepare for immigration investigations and enforcement actions. Our immigration compliance, government investigations, and crisis management teams are available to provide additional guidance and assist clients in addressing immigration-related concerns, developing and executing a crisis management plan, and responding to government inquiries and subpoenas.

For additional information about what to do if ICE agents arrive at your business, we invite you to revisit our prior LawFlash titled Ice Enforcement Actions: Understanding Employers’ Rights and Obligations.

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