Previous U.S. Presidents’ worksite enforcement activities have run the gamut from K-9 helicopter operations to round after round of I-9 work authorization verification raids. New guidelines under the Biden administration for immigration enforcement priorities are set to take effect November 29, 2021. Additional policy memos are expected soon, but it’s clear that the new guidelines focus on national security, public safety, and border security, and emphasize prosecutorial discretion.
What can employers expect?
Good News: No More Blanket Worksite Raids
The good news for employers is that the Biden administration has made clear that it is not interested in conducting blanket raids in which hundreds or even thousands of noncitizens are rounded up, torn from their jobs and families, and deported, according to Secretary of Homeland Security Alejandro Mayorkas. “For the first time, our guidelines will, in the pursuit of public safety, require an assessment of the individual and take into account the totality of the facts and circumstances” to ensure that the agency’s resources are focused most effectively on those who pose a threat, he said.
Secretary Mayorkas even acknowledged that most of the more than 11 million undocumented or removable noncitizens in the United States “have been contributing members of our communities across the country for years. The fact an individual is a removable noncitizen will not alone be the basis of an enforcement action against them.”
This all sounds good, but enforcement continues and employers can’t rest on their laurels just yet.
DHS Focuses on ‘Unfair’ Employers
The Department of Homeland Security has updated its worksite enforcement policies to focus on “unscrupulous employers who exploit the vulnerability of undocumented workers” and “create an unfair labor market.” DHS agencies have been directed to propose recommendations to protect noncitizens who report unlawful labor practices or participate in investigations or prosecutions.
In October 2021, the Department of Justice reached a settlement agreement with Facebook to pay about $14 million in fines and meet additional notice, recruitment, and training requirements. The settlement resolves claims that Facebook routinely refused to recruit, consider, or hire U.S. workers, including U.S. citizens and nationals, asylees, refugees, and lawful permanent residents, for positions it had reserved for temporary visa holders in connection with its use of the permanent labor certification program, or PERM.
Facebook separately settled with the Department of Labor, resolving issues the agency identified through audit examinations of Facebook’s recruitment activities related to its PERM applications. This case once again raises larger, recurring issues. Some argue that the Department of Labor has imposed more recruitment and paperwork requirements on employers than are usual, or justified under the law, for example. Observers believe this could have a chilling effect on employers wishing to hire high-skilled immigrants.
The Bottom Line for Employers
The same old advice still applies: Don’t get too complacent. Conduct regular periodic internal reviews of immigration-related paperwork, and make sure all of your I-9 and E-Verify ducks are in order. In addition to ensuring that recruitments are conducted fairly and workers’ immigration status is verified, treat all of your employees the same with respect to meeting I-9 requirements regardless of their citizenship or nationality, and avoid violating anti-discrimination provisions.
One final caveat: Keep in mind that in addition to federal laws and regulations, state laws may also apply and can change frequently. There can be hefty penalties for failure to comply with state laws regarding E-Verify requirements, for example, including cancellation of state contracts and denial of future contracts.
Contact your WR attorney for advice and help in specific situations.
More info:
- DHS Press Release, Sept. 30, 2021, https://www.dhs.gov/news/2021/09/30/secretary-mayorkas-announces-new-immigration-enforcement-priorities
- “Guidelines for the Enforcement of Civil Immigration Law,” DHS, Sept. 30, 2021, https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf
- “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual,” DHS Policy Statement 065-06, Oct. 12, 2021, https://www.dhs.gov/sites/default/files/publications/memo_from_secretary_mayorkas_on_worksite_enforcement.pdf
- “Biden Administration Orders Halt to ICE Raids at Worksites,” Washington Post, Oct. 12, 2021, https://www.washingtonpost.com/national/biden-administration-halts-ice-raids/2021/10/12/631dc86e-2b70-11ec-92bd-d2ffe8570c7d_story.html
- Joint DOJ-DOL Statement on Facebook Settlement, Oct. 19, 2021, https://www.justice.gov/opa/pr/justice-labor-departments-reach-settlements-facebook-resolving-claims-discrimination-against
- DOJ-Facebook Settlement Agreement, https://www.justice.gov/opa/press-release/file/1443336/download
