Ever since Donald Trump became president, there has been talk about travel bans, executive orders, and walls.  Immigration issues are front and center right now and have impacts throughout many aspects of our society. 

Employers cannot ignore this trend.  On February 20, 2017, during the commotion surrounding the President’s Executive Orders concerning immigration, Department of Homeland Security (“DHS”) Secretary John Kelly issued two memoranda describing how DHS would enforce the President’s mandates concerning immigration issues (beyond what was stated in the Executive Orders).  These memoranda discuss vastly expanding the definition of “criminal aliens” and warning that such unauthorized immigrants “routinely victimize Americans,” disregard the “rule of law and pose a threat” to people in communities across the United States.  Additionally, despite discussions of hiring freezes throughout the federal government, the new policies call for a “surge” in the deployment of immigration judges and other personnel.  DHS plans to hire not only new border guards but also new employees in other DHS divisions.

How does this impact employers?

It impacts employers in two ways: (1) an increase in DHS audits of I-9 files; and (2) an increase in random, unannounced, onsite visits to monitor compliance with H1-B and L-1 visas.  Moreover, there is talk that the government may make E-Verify enrollment mandatory.  Currently,  E-Verify is essentially a voluntary, web-based government program in which employers may enroll to verify employment authorization.  E-Verify is a step beyond the I-9 process, and most employers may presently choose whether to take on this additional obligation.  However, there are signs that the government may require all employers to participate in the E-Verify program.

Every employer should review its procedures and practices for verifying all its employees’ legal status and in what to do if a DHS inspector comes knocking.  Make sure that the I-9 files are in good shape and ready to be turned over to the government.  It is also a good time to review all aspects of employing non-Americans to ensure compliance with all laws and regulations.  If the government calls (or just shows up), be polite and call your counsel.

If you have questions about this or any other employment-related matter, please call John Rubiner at 310/441-0500.  Mr. Rubiner is chair of Gerard Fox Law’s Labor and Employment Group.