Raquel L. Bellamy, Immigration and Naturalization Attorney
Unauthorized immigration is a hot topic these days. No matter what side of the debate you embrace, the fact remains that undocumented immigrants make up about five percent (5%) of the U.S. civilian labor force as reported by the Pew Research Center: Size of U.S. Unauthorized Immigrant Workforce Stable After the Great Recession.
Many employers receive falsified identity documents from unauthorized immigrants unable to qualify for work authorization, and thus unknowingly employ undocumented workers. Other employers intentionally hire undocumented immigrants to gain a competitive advantage by offering lower pay and fewer protections. In the most egregious scenarios, employers falsify records and participate in labor trafficking by recruiting and smuggling workers from abroad (a big no no!).
Regardless of the scenario, U.S. employers are scrambling to assess the consequences of heightened immigration enforcement priorities. Will employees leave en masse? What are employers' rights and responsibilities in the event of a workplace raid? These and other questions are plaguing employers across the U.S.
The latest immigration executive order has deputized state and local law enforcement authorities as ICE agents. We saw a similar frenzy about a decade ago when officers relied on "287(g) agreements" which permitted coordinated efforts between police and ICE officials. To put it mildly, the result was a complete mess.
As history is the best instructor, I have taken the lessons of the past to create the top five immigration tips for employers:
1. Anticipate increased auditing of records to verify I-9 compliance. Locate and organize your records to avoid costly delays. You should have a completed I-9 for each employee.
2. Prepare for the inevitable by conducting an internal audit, which will help you identify any I-9 compliance issues.
3. Consult a competent employment attorney regarding any potential liability for violations of I-9 regulations.
4. Train front office staff (receptionists, hostesses, etc.) on how to approach law enforcement officials who enter the premises to inquire about immigration violations. Know your rights to limit access of law enforcement officers.
5. Avoid discrimination based on national origin against potential employees. During the interview phase, limit your inquiry to whether the applicant is authorized to work in the United States and whether the applicant will require sponsorship to obtain work authorization. If an applicant or a current employee is confused about work authorization, you should encourage him/her to seek independent counsel.
6. I know I said 5, but who doesn't love a bonus? Show compassion for workers who are experiencing personal trauma as a result of the changes in immigration enforcement priorities. Even U.S. citizens may experience a high level of anxiety over the potential impact to their family members and friends. Be mindful of negative interactions between employees. Some of my clients have reported workplace harassment. In one instance, a worker was blackmailed by a co-worker who threatened to call ICE. Employers should be aware of any workplace intimidation and maintain a policy against bullying. Again, regardless of your position on the debate, we are all less safe when pockets of our population are particularly vulnerable.
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