What to Expect with Trump 2.0 Workplace Enforcement

A key pillar of Trump 2.0’s immigration policy is his stated intent to remove any and all undocumented foreign nationals present in the United States. The extent to which he will achieve this goal remains to be seen as it inherently poses almost insurmountable logistical challenges as well as dramatic impact to certain areas of the economy. What we can predict with near certainty is one method by which the Trump administration will try to do so: through workplace enforcement actions.

The Department of Homeland Security’s Homeland Security Investigations (“HSI”) and Immigration and Customs Enforcement (“ICE”) are the principal actors in this forum and may, without warning, appear at a workplace, effectively detain all persons on-site for interrogation, and search the premises for evidence of unauthorized employment practice and the unauthorized employees themselves. During such an investigation, HSI and/or ICE may also audit an employer’s I-9 records to ensure they have taken the proscribed steps to verify each and every worker’s employment authorization within the requisite time period. By way of comparison, Trump 1.0 conducted 12,000 I-9 audits in 2020 while the Biden Administration only conducted 400 such audits last year. Thus, employers should not be surprised if, or when, HSI or ICE officers appear at their door.

With that in mind, employers can take preemptive steps to prepare for uninvited government visitors and avoid, or minimize, the negative impact(s) of such visits. These steps include but are not restricted to the following:

• Be sure to know your workforce. If you employ foreign nationals, be prepared for enhanced scrutiny and workplace disruptions. Encourage workers to always carry proof of their status (as required by law).
• Train managers. ICE or HSI must take certain steps before and during a workplace enforcement visit. There are limits on what they must do in advance and what they can do in the moment. All managers should be prepared for a site visit, so they know what to look for when first meeting a government officer, and throughout the investigation.
• Know who to call. Whether it is your in-house counsel, employment counsel, outside immigration attorney, or someone else, identify and do not hesitate to contact your advisor to assist in the investigation. Doing so can limit the scope of the investigation and the effect of a raid.
• Develop record-keeping policies. Possessing clear, comprehensive, and well-understood record-keeping policies as they relate to I-9 document maintenance and access will help avoid any wrongdoing or mitigate liability in the event there is an oversight.
• Maintain thorough records. Follow through with record-keeping protocols—simply having them is not enough.
• Stay calm. ICE and HIS officers want to fluster employers and workers, panicking will only aid those efforts.

Importantly, be proactive. Those who represent employers should reach out to clients now and encourage them to take the above steps. Waiting for what will come is not enough. The old adage of an ounce of prevention will be worth a pound of cure has never been more true.