Dept. of Homeland Security Announces Broad Immigration Enforcement Initiatives
Bryan Little, Farm Employers Labor Service
February 22, 2017
On Feb. 21, 2017, the Department of Homeland Security released two memoranda from DHS Secretary John Kelly to the Department's agency heads and senior staff setting out the Department's policy for implementing President Trump's January 25 executive orders, Enhancing Public Safety in the United States and Border Security and Immigration Enforcement Improvements.
The two memoranda issued yesterday (Implementing the President's Border Security and Immigration Enforcement Policies, and Enforcement of Immigration Laws to Serve the National Interest) outline significant changes in discretionary policy in immigration law enforcement.
Among the changes the memoranda describe:
- Immigration officers, at the border or in the interior, will be free to target a much larger range of immigrants for detention and possible deportation. According to the DHS website, "All those in violation of immigration law may be subject to immigration arrest, detention, and if found removable by final order, removal from the United States."
- While immigration officers are expected to continue to focus on criminals with multiple criminal convictions and multiple illegal entries to the U.S., including those who:
- have been convicted of any criminal offense,
- have been charged with any criminal offense that has not been resolved,
- have committed acts which constitute a chargeable criminal offense,
- have engaged in fraud or willful misrepresentation in connection with any official matter before a governmental agency,
- have abused any program related to receipt of public benefits,
- are subject to final order of removal but have not complied with their legal obligation to depart the United States, or,
- in the judgement of an immigration officers, otherwise pose a risk to public safety or national security.
- Adding 15,000 new enforcement officers;
- Reinvigorating cooperative programs with local law enforcement agencies more commonly known as the 287(g) program.
Neither Trump executive orders nor implementation memoranda have specifically mentioned stepped-up worksite enforcement, seeming to prefer to facilitate quick detention and deportation wherever possible. However, the disturbance in the communities where agricultural workers reside probably will cause disturbance at farm employers' workplaces.
It is important to remember that farm employers are not expected to function law enforcement and should in ICE enforcement activity find that some of your employees are not employment-eligible in the course of your investigation, you as the employer should not be subject to any sanction as long as you have satsifactory Forms I-9 for all your current employees and certain past employees. Regulations require you to retain Forms I-9 for three years or one year after the employee's employment terminates, whichever date is later.
Compliance Tips for Employers:
- Have a Form I-9 for each employee hired after November 6, 1986.
- Conduct a self-audit of your Forms I-9 annually, preferably by outside immigration counsel. Self-audits are helpful on many levels, including showing good faith and understanding what the field is doing and how they are completing the forms. It is also considered a "best practice" by ICE pursuant to its IMAGE program. One caveat: In the process of performing a self-audit, you can worsen your situation if for instance (even if well-intentioned) you backdate information on the forms, make corrections without proper annotations, or destroy prior Forms I-9 after completing a new form.
- Maintain a "tickler system" to notify you of expiring work authorization documents. Having in your employ someone whose work authorization has expired is "low-hanging fruit" for ICE agents in an audit. Once you are aware that an employee's work authorization has expired, you have knowledge that you are employing someone who may not be authorized to work in the United States. You need to take immediate action to address this issue. Given the complexities of such a situation, you should consult with immigration counsel before acting.
Common Mistakes Employers Make Dealing with Forms I-9:
- Not having a corporate immigration compliance strategy or plan in place. If ICE agents were to appear at one of your sites, do you have a plan in place to make sure either the receptionist or front line supervisor/manager contacts the appropriate person internally (i.e., legal counsel, head of Human Resources and/or owner) and that the Notice of Inspection (NOI) is properly routed? An NOI requires you to provide ICE with your Forms I-9 and supporting documents within three business days of receipt.
- Not completing a Form I-9 for new hires. Completion of Form I-9 is mandatory, and all employers must have a Form I-9 for every employee hired after November 6, 1986. One of the first things that ICE will do when auditing a company is cross-check a list of current employees to confirm there is a corresponding Form I-9 for each employee.
- Destroying current employees' Forms I-9. An employer may lawfully destroy Forms I-9 within a specified time frame as spelled out by the U.S. Department of Homeland Security (DHS). However, you must have a Form I-9 for each current employee hired after November 6, 1986. Misapplying DHS' time frames, some employers have purged Forms I-9 for current employees, which is not acceptable.
- Failing to complete Form I-9. While the need to fill out Form I-9 in its entirety should be obvious, some employers simply do not do so. One way this occurs is by having the employee complete Section 1 and then stapling photocopies of the employee's documents as a proxy for completion of Section 2 by the employer. That is not acceptable.
- Using an outdated version of Form I-9. The most recent version of Form I-9 is found on the U.S. Citizenship and Immigration Services (USCIS) website at I-9 Central. At this writing, the current version of the Form I-9 should be used for all hires after January 22, 2017; until a new version is issued, use it. While it may seem efficient to print and store blank Forms I-9 to use when hiring new employees, stockpiling copies can lead to using an obsolete-and thus improper-Form I-9, which can lead to complications if ICE were to audit you. Further, at this writing the release of a new two-page Form I-9 is on the horizon.
- Over-documentation in Section 2. Form I-9 requires an employer to verify the identity and work authorization of each new employee by allowing the employee to present either a List A document or a List B and a List C document. You do not need to record on Form I-9 a document from each of List A, List B and List C, nor should you do so. You do not get more stars if you complete every space in Section 2 of Form I-9. It is not unusual to see employers require employees--particularly non-U.S. citizens--to to provide a permanent resident card (a List A document) and also a Social Security card (a List C document) for instance. This is not acceptable. Doing so can lead to claims of discrimination on the basis of national origin and/or citizenship because you are treating these new hires differently than U.S.-born employees. Another way this can occur is if a new employee declares in Section 1 that she is a lawful permanent resident but then presents a driver's license and Social Security card instead of a permanent resident card. This is acceptable, and an employer may not request different documents in this situation, such as requiring the employee to show you her permanent resident card.
(Source: Arnall Golden Gregory, LLP - Permission to reprint given by Author Montserrat C. Miller. The Immigration Compliance Newsletter provides a general summary of recent legal and legislative developments and is for informational purposes only. It is not intended to be, and should not be relied upon as, legal advice. ©2012 All Rights Reserved.)
FELS website has a number of useful resources for agricultural employers facing a potential worksite audit: