By Michele Gorman, Law360
The worksite enforcements conducted at nearly 100 7-Eleven locations across the country earlier this month resulted in federal immigration officials arresting almost two dozen employees for being illegally present in the United States and conducting audits and interviews with store workers — and GCs may be left wondering how to prepare in case their companies are targeted in the same way.
It was the Trump administration’s largest immigration enforcement operation against an individual employer to date. As a result, experts say business leaders should take a proactive approach to these so-called raids.
“We expect enforcement at the worksite to go up dramatically,” said Charles C. Foster, immigration adviser to Presidents George W. Bush and Barack Obama and chairman of Foster LLP, one of the largest immigration law firms in the U.S.
Here, Law360 identifies four ways companies and their legal counsel can prepare for a potential worksite enforcement by federal immigration officers.
Conduct an Internal Audit
GCs can prepare their companies and employees by performing an internal audit of their I-9 forms to ensure ongoing compliance with the employer sanctions provision of the Immigration and Nationality Act, said Scott Bettridge, chair of Cozen O’Connor’s immigration practice. Employers can either review all I-9 forms or a sample selected on neutral and nondiscriminatory criteria.
Before conducting the audit, Bettridge advises GCs to consider its purpose and communicate to employees what they can expect from what should be a transparent process, including informing them that it’s being completed independent of any government directive.
GCs should then ensure that any identified deficiencies are corrected according to current best practices and guidelines, or terminate any employee who cannot provide proper documentation, Bettridge said.
“This is yet another good way for GCs to ensure that their workforce is lawful, legal and that they possess the necessary paperwork to present in the event of any ICE [U.S. Immigration and Customs Enforcement] raid,” he said.
Eric S. Bord, a Morgan Lewis & Bockius LLP partner who counsels clients on corporate immigration issues involving the recruitment, hiring, transfer and retention of personnel worldwide, added that “GCs who may in the past have been a bit complacent in ensuring the company’s Form I-9 practices need to appreciate that this is a legal compliance area that is as deserving of attention as many other substantive compliance issues.”
GCs can also consider whether they wish to enroll their company in E-Verify, an online system that allows businesses to determine the eligibility of their employees to work in the U.S. Bettridge said the system is easy to use and the best way that employers can ensure a legal workforce.
Be Cautious After Previous Inspections
If a GC’s organization has previously been the subject of an inspection, understand it could be in the crosshairs of federal enforcement efforts and proceed with caution, said Angelo Paparelli, a partner in the business immigration practice group of Seyfarth Shaw LLP.
Homeland Security Investigations within ICE “have a sort of bounty hunter incentive to find you at fault because they get to charge you with enhanced penalties for a second or third offense,” he said.
If your company hasn’t been the subject of a prior enforcement action, Paparelli suggested looking at your industry to ascertain whether the organization is a high-level target.
The industries typically most at risk for enforcement action are strategic infrastructure, food service, agriculture, hospitality, manufacturing and apparel, among others, Paparelli said. Banking, health care, insurance and technology are industries that he said historically haven’t faced the same kinds of attention from officials.
“I infer that technology, because of the frequent use of IT consulting services through vendors and third-party contractors, is going to face more of it,” Paparelli said. “They are perceived to be offshoring jobs to foreign workers.”
Implement an Investigation Protocol
Whether or not a company has been the subject of an enforcement action by Homeland Security Investigations agents, experts recommend developing a strategy to have in place in case one occurs.
Depending on the enforcement agency, some officials may communicate formally in writing through a letter or email before a raid, while others may appear unannounced, Paparelli said. If ICE shows up, for example, the officials typically serve a Notice of Inspection ahead of time. The employer typically has three business days to gather required information, typically the original I-9 forms of all current and certain former employees. Historically, ICE has been accommodating to employers that need extensions for legitimate business reasons, say, if the documents are stored at different locations, Paparelli said.
Aside from I-9 Employment Verification Forms, investigators may also want to see payroll records, tax filings, employment applications, personnel files and business licenses, Foster said.
Agents cannot enter the premises without consent, said Foster, adding that many times employers feel intimidated and quickly give their consent to enter out of a sense of cooperation.
Instead, experts say to immediately reach out to in-house counsel, the human resources department, and immigration and employment counsel to identify the authority of the agency, help the employer with the process and locate records the officials may request.
The strategy should also include instructing security personnel and receptionists — the staff members who most likely will be the first to greet any officer — to try to confirm the identity of the group, escort the officers to a conference room and indicate they will contact the appropriate people about the visit.
Take Note of Officials’ Actions
If a workplace enforcement happens, Foster says to record all documents, equipment and personnel seized, and try to copy all documents if permitted.
Record any oral statements made and any instructions given by the officers as soon as possible, and note all areas of the premises observed by officers.
Last, be prepared for media attention, which will likely include needing to craft a press release and having it scrutinized by outside immigration counsel and a public relations firm.
For many companies, the public relations aspect is significant, Foster said, because employers prefer not to see a headline about their businesses in the next day’s newspaper. Taking action now and having a game plan in place will help minimize that added stress if an investigation occurs.