USCIS Crackdown and Ice Enforcement
The Trump administration has made it clear that it is a priority to crackdown on what it sees as widespread fraud and abuse in the immigration system. To achieve that goal, shortly after taking office, the President signed two executive orders – one calling for the Department of Homeland Security (“DHS”) to hire thousands of new border patrol agents, and the other instructing federal agencies to construct a wall along the Mexican border.
In a Homeland Security Report issued in November 2017, DHS noted that it was having difficulties implementing the President’s plan. In particular, DHS is having a difficult time recruiting the number of officers that the President wants to hire. DHS noted that it is doing everything it can to make the hiring process more efficient.
Late in 2017, immigrant watchdog groups warned of an Immigration and Customs Enforcement (“ICE”) operation called “Operation Mega,” which was reportedly set to be a nationwide ICE raid with the goal of detaining thousands of undocumented immigrants. The raid was canceled, however, in light of Hurricanes Irma and Harvey.
In response to the Trump administration’s immigration-related policies, in 2017, the California Legislature passed two important laws, SB 54 and AB 450, designed to essentially make California a “sanctuary state.”
SB 54 prevents police in California from asking people about their immigration status or participating in most federal immigration enforcement actions. The law also limits state and local enforcement communication with federal immigration authorities and prevents jails from holding criminal aliens because of their immigration status unless the person has committed certain crimes, including a serious or violent felony.
Also in response to the Trump administration’s immigration-related policies, and particularly relevant for employers, in 2017, the California Legislature passed AB 450, the “Immigrant Worker Protection Act,” which essentially takes away an employer’s ability to voluntarily consent to ICE audits. As of January 1, 2018, employers are prohibited from voluntarily consenting to immigration enforcement agents entering nonpublic areas of the workplace without a warrant. Additionally, employers are prohibited from voluntarily consenting to immigration enforcement agents accessing, reviewing, or obtaining employment records without a subpoena or court order. Employers are further prohibited from providing voluntary consent to a search and must provide notice to current employees of an inspection of Form I-9 within 72 hours of receiving a federal Notice of Inspection. Penalties for non-compliance range from $2,000 to $5,000 for an initial violation and $5,000 to $10,000 for subsequent violations.
These “sanctuary state” laws have not gone over well with the federal government. Thomas Homan, acting director of ICE told Fox News in January of 2018 that California is “about to see a lot more special agents, a lot more deportation officers” and that the agency was planning to “significantly increase” its enforcement in the state because of the sanctuary state legislation. We can expect a forthcoming legal battle in the New Year.
The repeated failure of Congress to pass comprehensive immigration reform led President Barack Obama on June 15, 2012 to announce The Federal Consideration of Deferred Action for Childhood Arrivals (“DACA”) program. DACA was formally initiated by a policy memorandum issued the same day by the then-Secretary of Homeland Security Janet Napolitano to several Federal agencies and allowed for undocumented immigrants who came to the United States before the age of sixteen and who met certain criteria to enroll in the DACA program and enjoy (1) a period of deferred deportation action and (2) eligibility to request employment authorization. Currently, there are approximately 800,000 DACA participants.
On September 5, 2017, the Trump administration announced it was ending DACA. The memorandum explaining the decision to rescind DACA pointed to legal issues with DACA, including Attorney General Jeff Sessions’ determination that DACA “was effectuated by the previous administration through executive action, without proper statutory authority” and that it was “an opened-ended circumvention of immigration laws [that] was an unconstitutional exercise of authority by the Executive Branch.” This decision has left many employers uneasy about how to handle employees whose employment authorization was granted through the DACA program and if they are still eligible to work in the United States.
The Trump administration gave Congress a six-month window to pass appropriate legislation before current DACA recipients are potentially affected. Further, if a person’s DACA authorization was set to expire within six months (i.e., before March 5, 2018), they could seek to renew their status, and they must have done so by October 5, 2017. The United States Citizenship and Immigration Services (“USCIS”) will reject any new renewal request after October 5, 2017. A renewal is typically valid for two years. By March 2020, there should be no more DACA recipients unless Congress acts to keep the program in place in some capacity or another. However, recent comments by President Trump that any legislative solution for DACA “must secure the wall,” referencing his campaign promise to build a wall across the Mexican border, makes the prospect of DACA being passed by Congress increasingly unlikely.
For the time being, employers should continue to follow I-9 verification and re-verification requirements and review new and current employees’ Employment Authorization Documents (“EADs”). If an EAD is expired, then the employer should ask for an alternative form of workplace authorization, as explained in Form 1-9. If an employee fails to provide additional authorized verification within a reasonable time, then the employer should terminate the employee as the employee is no longer legally allowed to work in the United States.
Until a DACA recipient’s EAD expires, employers must continue to accept employees’ valid authorization documents. In addition, DACA recipients should not be treated differently during the Form I-9 re-verification process, and employers should not restrict an employee’s choice of acceptable documents, as stated on Form I-9.
The events of the past year certainly indicate that the Trump administration will continue to take an aggressive stance on illegal immigration and that we should expect more ICE raids in the New Year. Meanwhile, states like California will continue to pass immigration-friendly legislation aimed at pushing back against the Trump administration’s efforts. Unfortunately, that means that companies that rely on immigration for labor will increasingly find themselves stuck in the middle of this fight and will have to continue monitoring to make sure they are aware of how new federal and state laws will effect them.