Ed note: This article was co-authored with Yane McKenzie, one of my colleagues whose practice is focused on business immigration. She’s kind of an expert on this stuff.
As Elie Mystal wrote about recently, U.S. Immigration Customs and Enforcement recently raided 98 7-Eleven stores in 17 states and Washington, D.C. The raid ended with 21 arrests and marked the beginning of a larger investigation into the hiring practices of the franchisees which were targeted. ICE called the raids part of a “follow-up” to a 2013 investigation which resulted in the arrest of nine 7-Eleven franchise owners and managers who were charged with employing undocumented workers.
While there’s been a lot of press coverage surrounding these raids, the agency has actually been in the business of conducting raids like this for some time. For example, in May 2008 ICE raided an Iowa meatpacking plant, resulting in almost 400 undocumented individuals (including several children) being detained. This was a result of the strategy used by ICE under Bush 43, which focused on arresting illegal workers at their homes and in large agricultural facilities.
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But ICE has used a variety of strategies in the past to curtail the employment of undocumented workers. Most recently, ICE during the Obama Administration focused more on removing convicted criminals and conducting paper audits of employers.
These most recent 7-Eleven raids appear to represent an important shift in the agency’s enforcement strategy under Trump. While Elie’s point is well taken that this tactic of conducting large, on-site raids may likely have the effect of discouraging undocumented employees from appearing at their jobs, it will also have an important effect on employers as well. As ICE Deputy Director Thomas D. Homan stated following the raids, ICE intended the raids to “send a strong message to U.S. businesses that hire and employ an illegal workforce.” He also said, “Businesses that hire illegal workers are a pull factor for illegal immigration and we are working hard to remove this magnet.”
To that end, ICE is planning to increase worksite enforcement actions this year by 4 to 5 times. This includes similar raids and I-9 audits. While ICE raids are more dramatic and can lead to immediate arrests on the spot, I-9 inspections happen over an extended period and can be likened to a form of medieval torture. (In addition to the I-9s, ICE may also want to see extensive information relating to payroll, taxes, and personnel files, among other things. They tend to dig deep.)
We’ve all seen an I-9 before. It’s that little two-page form we fill out when we start a new job. Despite its seeming simplicity, companies commit on average more than 60 substantive and technical violations on a single I-9 form. Yes, you read that right: 60 violations on a two-page form. And that’s the average. So when ICE says it’s going to be ramping up its I-9 audits, employers should really pay attention.
So what are the key takeaways here in light of this new enforcement strategy?
Most importantly, companies should strongly consider auditing their I-9s (preferably with the help of an experienced attorney to ensure all available privileges are preserved) to assess any potential violations. For example, while some errors are considered technical and can be corrected, others are substantive in nature and can’t be remedied after the fact (e.g., the late completion of Section 1 or 2 of the form). Being able to identify what the substantive violations are and taking proper actions to avoid repeating the same errors in the future is important to showing that the company has made a good faith effort to comply with the rules.
It’s also critical for employees and management to be trained on how to respond should an ICE agent drop by for more than an afternoon tea. An unprepared workforce is more likely to acquiesce to an agent’s request prematurely and to make other inadvertent (but costly) mistakes.
I’m taking the recent comments about ICE’s increased enforcement efforts seriously. I hope that everyone else does the same.
Evan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)