Silver Taube: Workplace immigration enforcement expected to increase

“Worksite enforcement is coming back in a big way,” said Thomas Homan, President Donald Trump’s “border czar” responsible for border security and immigration enforcement.

During Trump’s first term, there were 5,981 audits of work authorization form I-9 in 2018 and 6,450 in 2019. U.S. Immigration and Customs Enforcement (ICE) set a goal of 12,000 audits in 2020, but ceased audits when COVID hit. It is anticipated Trump in his second term will increase I-9 audits to 12,000 to 15,000 a year.

I-9 audits begin with ICE or the Department of Homeland Security sending notice of inspections, which request employers provide I-9s for current and recently terminated employees within three days of receipt. The agency may request related documentation as well, such as a list of current employees, payroll records and E-Verify records. ICE has published a handbook for completing I-9 forms.

In California, Labor Code 90.2 requires the employer to notify all employees within three days of the notice. The California Labor Commission provides a template notice.

ICE reviews the documents and informs the employer of the results. If there are problems, ICE issues a notice, and the employer has 10 business days to respond but may request more time. Labor Code 90.2 requires the employer to notify any worker who is identified in the notice.

If ICE concludes there are violations or the employer knowingly hired an undocumented worker, the agency may impose civil and/or criminal penalties.

Although an employer may conduct an internal audit of all employees at any time, it is unlawful for an employer to request employment verification from a worker or a group of workers at any time other than at time of hire or if work authorization is expiring. An employer cannot request more documents than the I-9 form requires or refuse to accept documents that appear valid. It is also unlawful for an employer to retaliate against workers who update their Social Security number.

ICE has recently targeted employers such as staffing companies, restaurants and supermarkets around the country for I-9 audits.

There are unique features in these recent audits. ICE is targeting and detaining certain employees at the workplace when serving the notice of inspection. ICE is also deploying numerous special agents, who are stationed outside the exits so they can detain employees if they run out of the business.

In addition to I-9 audits, the administration has begun workplace raids. Fear has spread throughout immigrant communities and has impacted businesses.

“There has been heightened awareness of raids occurring throughout the United States, especially at places of work,” Kevin Thompson, CEO of 9i Capital Group and host of the 9innings podcast, said. “This has caused some to forgo work altogether in fear of being arrested either during transport or at their place of employment, even if they are a legal migrant with a green card or H-1B visa status.”

Although a raid does not require notice, ICE must have a search warrant signed by a judge and issued by a court that allows the agency to search for and obtain documents other than the I-9 or enter nonpublic workplace areas.

Employers have expressed alarm at the administration’s immigration enforcement actions and echo workers’ fears.

“Workers aren’t being paranoid—they’re reacting to reality, HR consultant Bryan Driscoll said. “(We’ve) already seen U.S. citizens wrongfully detained and illegally removed from the country. The line between ‘immigration enforcement’ and ‘civil rights violations’ is nonexistent. That sends a brutal message: if you even look out of place, your rights are negotiable.”

We are living in perilous times, and it is important that immigrant workers know their rights.

San José Spotlight columnist Ruth Silver Taube is supervising attorney of the Workers’ Rights Clinic at the Katharine & George Alexander Community Law Center, supervising attorney of the Santa Clara County’s Office of Labor Standards Enforcement Legal Advice Line and a member of Santa Clara County’s Fair Workplace Collaborative. Her columns appear every second Thursday of the month. Contact her at [email protected].