Insight

Large-Scale Immigration Raids Focus Attention on Employer Compliance With Immigration Laws

The recent raids of dozens of 7-Eleven stores by U.S. immigration agents and the corresponding arrest of 21 individuals for immigration-related violations were widely covered as the largest immigrant enforcement crackdown undertaken by the Trump administration to date.

Employer Compliance Immigration
Martha J. Schoonover

Martha J. Schoonover

February 12, 2018 12:45 PM

The recent raids of dozens of 7-Eleven stores by U.S. immigration agents and the corresponding arrest of 21 individuals for immigration-related violations were widely covered as the largest immigrant enforcement crackdown undertaken by the Trump administration to date. Importantly, the raids also focused renewed attention on the importance of immigration compliance and the increasingly active role played by U.S. Immigration and Customs Enforcement (ICE), which, according to its acting director, Thomas Homan, will increase the amount of time spent on worksite enforcement actions “by four or five times,” consistent with the Trump administration’s stated goal of proactively curbing illegal immigration.

When announcing the agency’s increase in enforcement activity, Homan also signaled a marked change in agency posture, noting that ICE will detain and possibly remove undocumented employees in addition to prosecuting employers for knowingly hiring or retaining workers who lack valid U.S. employment authorization.

ICE’s promised increase in worksite enforcement actions and the agency’s renewed focus on apprehending undocumented workers while also prosecuting the employers who knowingly hire such individuals underscore the importance of proactively implementing proper Form I-9 completion and vetting procedures during the on-boarding process. Importantly, it bears noting that ICE is empowered to prosecute employers for both “actual” and “constructive” knowledge, the latter of which is difficult to define and subject to interpretation. In addition, employers are advised to work with experienced counsel to conduct periodic immigration compliance training and internal audits to identify and address potential workforce challenges before being confronted with an ICE audit.

Pursuant to the Immigration Reform and Control Act (IRCA) and Section 274A(b) of the Immigration and Nationality Act (INA), codified in 8 U.S.C. Section 1324a(b), employers must verify the identity and U.S. employment authorization of all employees hired in the U.S. after November 6, 1986, and may face civil and criminal penalties for employment-related violations. To document compliance with the verification requirement described above, employers must use the Form I-9, Employment Eligibility Verification Form. Moreover, IRCA prohibits employers from hiring or continuing to employ an individual while knowing that he/she is unauthorized for employment in the U.S.

Worksite enforcement audits of employers’ Form I-9 records are carried out by ICE. The administrative inspection process begins when ICE serves a notice of inspection (NOI) to compel the production of Forms I-9 and related materials, including but not limited to payroll records, a current employee roster, articles of incorporation, supporting document copies (if applicable), and E-Verify reports (if applicable). Under the applicable statute, employers have at least three business days to produce the requested records.

ICE reviews employers’ employment verification records for compliance with the statutory requirements described above, specifically technical Form I-9 violations (generally defined as errors that do not prevent a finding of authorized employment in the U.S.) and substantive violations (generally characterized as more serious deficiencies that preclude confirmation of valid U.S. work authorization). When technical violations are identified, the INA grants employers 10 business days to remedy the violations. However, substantive violations (as well as uncorrected technical errors) may trigger monetary fines, depending on factors such as the employer’s good faith, business size, employment verification history, the seriousness of noted violations, and the hiring of unauthorized workers, if any. The failure to produce a Form I-9 is regarded as a substantive violation. Additional civil penalties for violating the employment-related anti-discrimination provisions of the INA, enforced by the U.S. Department of Justice’s Immigrant and Employee Rights Section (IER), may also apply if an employer engages in impermissible citizenship status or national origin discrimination during the hiring, firing, recruitment, or referral for a fee process; document abuse during the employment eligibility verification, Form I-9, process; or retaliation or intimidation.

Worksite enforcement audits present numerous time-sensitive and legally serious issues. Accordingly, the service of an ICE NOI and/or an accompanying subpoena should always be taken seriously and addressed expeditiously. In addition, maintaining robust and proactive immigration compliance protocols and conducting periodic internal reviews of Form I-9 records in consultation with experienced counsel are critical components of ensuring legal compliance and staying above the fray generally and during periods of heightened enforcement scrutiny.

-----------------------------

Martha J. Schoonover is co-chair of the Business Immigration and Compliance Practice and focuses her practice on business immigration matters and assists employers in obtaining temporary, nonimmigrant visas for business persons, managers, and executives, treaty investors and traders, professionals (including researchers and scientists, engineers, computer professionals, and business professionals), exchange visitors, students, and crew members working on the Outer Continental Shelf. In addition, Martha assists in obtaining labor certifications and permanent resident status for professionals, researchers, multinational managers and executives, and other priority workers in obtaining and relinquishing U.S. citizenship.

Nataliya Binshteyn Dominguez focuses her practice on global business immigration matters. She advises corporate and individual clients in a variety of employment-based immigrant and non-immigrant cases. She counsels corporations on Form I-9 and E-Verify employment verification matters, including compliance audits, due diligence for corporate restructuring, and immigration-related defense in connection with worksite enforcement investigations. Nataliya also conducts Form I-9 and E-Verify trainings and frequently authors articles regarding immigration compliance issues. She also represents political asylum applicants in immigration proceedings.

Related Articles

Immigration Worksite Compliance Issues for Employers


by Maria I. Casablanca

Immigration worksite enforcement has become a balancing act between verifying eligibility to work and avoiding discrimination; thus it has merged two fields of law: labor and employment law with immigration and nationality law.

Immigration Worksite Compliance

The Day-To-Day of an Immigration Lawyer in the U.S.


by Best Lawyers

In this article, Best Lawyers takes a glimpse into the day-to-day life of an immigration lawyer, what roles they must take on and how their assistance may be critical to the outcome of a case.

Two U.S. flags surround gold text and official seal

The Price of Admission


by Janice Zhou

States and the federal government are engaged in a pitched battle over immigration and refugee settlement—with the legal profession caught in the middle, taking fire from both sides.

Immigration Reform in Connecticut

Loophole or Fatal Flaw?


by Joseph Begonis

Canada's Best Lawyers share their thoughts on the Safe Third Country Agreement

What Is the Safe Third Country Agreement?

In the News: Colorado


by Nicole Ortiz

A summary of newsworthy content from Colorado lawyers and law firms.

Colorado In the News 2018

Chain Migration Solutions Desperately in Search of a Problem


by Aaron C. Hall

The White House insists that any new law giving Dreamers a permanent place in the United States also stop what it refers to as the chain migration problem.

Chain Migration

H-1B Applications: Proactive Steps in 2018


by Brad J. Hendrick

Last year, USCIS received approximately 199,000 applications for the 85,000 H-1B visas allocated each year.

H-1B Applications

Interagency Cooperation: Raising the Bar for Immigration Compliance


by Kathleen Campbell Walker

Stove-piped legal representation is not advisable (e.g., only focusing on one agency segment or one portion of a filing process).

Immigration Compliance

Trump Administration’s Termination of DACA, TPS, and H-4 EAD Immigration Programs Could Leave Employers in a Lurch


by Ann Massey Badmus

Several immigration programs that have authorized over a million immigrant workers are expected to end in 2018 and 2019.

DACA, TPS, and H-4 EAD

The Trump Administration’s Attack on Legal Immigration


by Bennett R. Savitz

The adjudication strategy achieved the change the Trump administration wanted to make to the H-1B program without having to amend the regulations.

Legal Immigration – Trump

Smart Policy and Smart Compassion


by David P. Berry

Why it makes sense to protect the Dreamers.

Dreamers

H-1B Planning for Fiscal Year 2019


by Lisa Koenig

Employers should be prepared to pivot.

H1-B Planning

Trump and Immigration: Separating Truth from Fiction


by Harlan G. York

Deportations aren’t up, but the people who are being deported are more “newsworthy.”

Trump and Immigration

Dilip Patel, 2018 "Lawyer of the Year" for Immigration Law


by Nicole Ortiz

Dilip Patel of Dilip Patel Law Firm was named 2018 "Lawyer of the Year" in Tampa for Immigration Law.

Dilip Patel LOTY

In the News: South Florida


by Compiled by Nicole Ortiz

A summary of newsworthy content from South Florida lawyers and law firms.

South Florida In the News 2018

In the News: Southern California


by Compiled by Nicole Ortiz

A summary of newsworthy content from Southern California lawyers and law firms.

Southern California In the News

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Announcing the 2022 Best Lawyers® in the United States


by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

2021 Best Lawyers: The Global Issue


by Best Lawyers

The 2021 Global Issue features top legal talent from the most recent editions of Best Lawyers and Best Lawyers: Ones to Watch worldwide.

2021 Best Lawyers: The Global Issue

The U.S. Best Lawyers Voting Season Is Open


by Best Lawyers

The voting season for the 31st edition of The Best Lawyers in America® and the 5th edition of Best Lawyers: Ones to Watch® in America is officially underway, and we are offering some helpful advice to this year’s voters.

Golden figures of people standing on blue surface connected by white lines

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

The Best Lawyers in Australia™ 2024 Launch


by Best Lawyers

Best Lawyers is excited to announce The Best Lawyers in Australia™ for 2023, including the top lawyers and law firms from Australia.

Australian Parliament beside water at sunset

Inflation Escalation


by Ashley S. Wagner

Inflation and rising costs are at the forefront of everyone’s mind as we enter 2023. The current volatile market makes it more important than ever to understand the rent escalation clauses in current and future commercial lease agreements.

Suited figure in front of rising market and inflated balloon

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

A Celebration of Excellence: The Best Lawyers in Canada 2024 Awards


by Best Lawyers

As we embark on the 18th edition of The Best Lawyers in Canada™, we are excited to highlight excellence and top legal talent across the country.

Abstract image of red and white Canada flag in triangles

8 Different Types of Criminal Defenses in Law


by Best Lawyers

Learn about the different types of criminal defenses available in law, including innocence, self-defense, insanity and more. Protect your rights today.

Silver handcuffs laying on finger printed papers

Wage and Overtime Laws for Truck Drivers


by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

Choosing a Title Company: What a Seller Should Expect


by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

The 2024 Best Lawyers in Spain™


by Best Lawyers

Best Lawyers is honored to announce the 16th edition of The Best Lawyers in Spain™ and the third edition of Best Lawyers: Ones to Watch in Spain™ for 2024.

Tall buildings and rushing traffic against clouds and sun in sky