February 3, 2025. Washington, D.C. As our attorneys had previously issued a legal alert, the new Trump Administration has made immigration enforcement as its major priority for the administration. Days after the inauguration of the new president, the Immigration and Customs Enforcements (ICE), an agency within U.S. Department Homeland Security (DHS) and other federal law enforcement agencies moved swiftly in locating, processing and removing immigrants who had no legal authorizations to stay in the U.S. In coming days, the government's enforcement actions will continue and possibly expand to a different set of individuals besides those who had removal orders or had some criminal cases against them.
The newly passed immigation enforcement law, Laken Riley Act, gives far broader authority to the administration. The Act requires DHS to detain certain non-U.S. nationals (aliens under federal law) who have been arrested for burglary, theft, larceny, or shoplifting. The Act also authorizes states to sue the federal government for decisions or alleged failures related to immigration enforcement. Under this Act, DHS must detain an individual who (1) is unlawfully present in the United States or did not possess the necessary documents when applying for admission; and (2) has been charged with, arrested for, convicted of, or admits to having committed acts that constitute the essential elements of burglary, theft, larceny, or shoplifting.
The Laken Riley Act, also authorizes state governments to sue for injunctive relief over certain immigration-related decisions or alleged failures by the federal government if the decision or failure caused the state or its residents harm, including financial harm of more than $100. Specifically, the state government may sue the federal government over a:
- decision to release a non-U.S. national from custody;
- failure to fulfill requirements relating to inspecting individuals seeking admission into the United States, including requirements related to asylum interviews;
- failure to fulfill a requirement to stop issuing visas to nationals of a country that unreasonably denies or delays acceptance of nationals of that country;
- violation of limitations on immigration parole, such as the requirement that parole be granted only on a case-by-case basis; or
- failure to detain an individual who has been ordered removed from the United States.
ICE's Enforcement actions targeting Employers and Workers:
ICE is legally authorized to conduct worksite enforcement holding employers accountable for violations of The Immigration Reform and Control Act of 1986 (“IRCA”). This law requires U.S. employers to verify the identity and employment authorization status of all of its new employees. The employers are required to complete Form I-9, for every employee the employer hires for employment in the U.S., this include U.S. citizens as well as noncitizens. Section 274A(b) of the Immigration and Nationality Act (“INA”), codified in 8 U.S.C. § 1324a(b), requires employers to verify the identity and employment eligibility of all individuals hired in the United States after November 6, 1986. The I-9 is the vehicle for documenting this verification.
What is an I-9?
IRCA requires U.S. employers to verify the identity and employment authorization status of ALL new employees. This is done through a Form I-9, which all U.S. employers are required to complete for every individual they hire for employment in the United States, including U.S. citizens and noncitizens.
What is an I-9 Audit?
Although several government agencies are responsible for enforcing federal immigration laws, ICE is the primary agency effecting employers. ICE, which is a part of the Department of Homeland Security, is comprised of two main entities, Enforcement and Removal Operations (“ERO”) and Homeland Security Investigations (“HSI”). ERO is generally responsible for the apprehension, detention, and deportation of undocumented immigrants. Meanwhile, HSI is generally responsible for investigating transnational crime and historically, this has included investigations into employers hiring undocumented immigrants and I-9 audits.
An I-9 Audit is where ICE, typically HSI, conducts an investigation and audit of the company’s I-9s for each of the company’s employees to determine if the company has complied with the rules for verifying employees’ identities and authorization to work in the United States. ICE initiates an audit by service of a Notice of Inspection (“NOI”) requesting production of I-9 and related documents for inspection by ICE. The law requires ICE provide at least three business days’ notice prior to conducting the Form I-9 Audit.
After completing its inspection of an employer’s I-9s and any related supporting documentation, ICE will notify the employer of its findings in writing .
Severe Consequences for Compliance Violations
Failure to comply with I-9 requirements can have severe consequences for employers, including civil and even criminal penalties. For example, employers who fail to properly complete and retain the I-9 or commit simple I-9 paperwork violations, can face civil penalties ranging from $281 - $2,789 for each incorrect I-9. Additionally, employers who hire individuals who are not authorized to work in the United States could incur civil penalties in the amount of $698-$5,579 for each occurrence. The amount of the fine depends upon the size of the business, good faith of the employer and whether the conduct was intentional, seriousness of the violation, involvement of unauthorized workers, and the employer’s history of previous violations. If an employer engages in a "pattern or practice" of I-9 violations, meaning they repeatedly and knowingly hire unauthorized workers, they can face criminal penalties including fines of up to $3,000 per unauthorized employee and potential imprisonment for up to six months; essentially, the more frequent and deliberate the violations, the more severe the potential criminal consequences can be.
Proactive Steps Your Company Can Take to Prepare for a Potential I-9 Audit or ICE Workplace Visit
Don’t wait until it is too late, better talk to an experienced immigration attorney. Your business should be prepared for and know how to respond to a NOI and, if applicable, a workplace visit from ICE.
HSI worksite investigations
HSI has developed a comprehensive worksite enforcement strategy that promotes national security, protects critical infrastructure and targets employers who violate employment laws or engage in abuse or exploitation of workers.
An effective worksite enforcement strategy must address both employers who knowingly hire illegal workers, as well as the workers themselves. In worksite cases, HSI investigators adhere to high investigative standards, including the following:
- HSI will look for evidence of the mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering and other such criminal conduct; and
- HSI will obtain indictments, criminal arrests or search warrants, or a commitment from a U.S. attorney's office to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.
HSI also works with the private sector to educate employers about their responsibilities to hire only authorized workers and how to accurately verify employment eligibility, through such tools as the IMAGE program.
IMAGE program
Undocumented workers create vulnerabilities in today's marketplace by presenting false documents to gain employment, completing applications for fraudulent benefits and stealing identities of legal United States workers. To combat this, ICE initiated the ICE Mutual Agreement between Government and Employers (IMAGE) program in 2006. As part of the IMAGE program, ICE provides employers with education and training on proper hiring procedures, including use of employment screening tools such as E-Verify. IMAGE certified employers also undergo an audit of their I-9 forms to ensure current employees are eligible to work in the United States.
Employers that are certified with ICE through the IMAGE program pledge to maintain a secure and stable workforce and curtail the employment of unauthorized workers through outreach and education. ICE recently revamped IMAGE, simplifying program requirements.
E-Verify
Through the U.S. Department of Homeland Security (DHS) E-Verify employment eligibility verification program, employers can verify that newly hired employees are eligible to work in the United States. This Internet-based system is available throughout the nation and is free to employers. It provides an automated link to the Social Security Administration database and DHS immigration records.
Trump Administrationd immigration plans (copied verbarim from Trump Administration's annoucements, mind the language!)
From its public annoucements of Trump Administrationd immigration plans, Trump Administration hopes to undertake the following:
⭕ Seal the border and stop the migrant’s illegal entries
⭕ Carry out the largest deportation operation in American history
⭕ Stop the migrant crimes, demolish the foreign drug cartels, crush gang violence, and lock up violent offenders
⭕ Deport pro-Hamas activists from the country or from college campuses
⭕ Elections reform, including same day voting, voter identification, paper ballots, and proof of citizenship.
The Republication Party and Trump ticket has provided some limited detail about these plans as the following:
SEAL THE BORDER, AND STOP THE MIGRANT INVASION
GOP Plan:
Republicans offer an aggressive plan to stop the open-border policies. GOP will end the illegal entries at the Southern Border, restore Law and Order, protect American Sovereignty, and deliver a Safe and Prosperous Future for Americans.
1. Secure the Border: Republicans will restore every Border Policy of the Trump administration and halt all releases of Illegal Aliens into the interior. GOP will complete the Border Wall, shift massive portions of Federal Law Enforcement to Immigration Enforcement, and use advanced technology to monitor and secure the Border. GOP plans to use all resources needed to stop the illegal entries— including moving thousands of Troops currently stationed overseas to Southern Border.
GOP will deploy the U.S. Navy to impose a full Fentanyl Blockade on the waters of our Region—boarding and inspecting ships to look for fentanyl and fentanyl precursors.
2. Enforce Immigration Laws
Republicans will strengthen ICE, increase penalties for illegal entry and overstaying Visas, and reinstate “Remain in Mexico” and other Policies from Trump’s first term. GOP will also invoke the Alien Enemies Act to remove all known or suspected gang members, drug dealers, or cartel members from the United States, ending the scourge of Illegal Alien gang violence once and for all. GOP will bring back the Travel Ban, and use Title 42 to end the child trafficking crisis by returning all trafficked children to their families in their Home Countries immediately.
3. Begin Largest Deportation Program in American History
President-elect Trump and Republicans will reverse the Open Borders Policies. The Republican Party is committed to sending Illegal Aliens back home and removing those who have violated Laws.
4. Strict Vetting
Republicans will seek to use existing Federal Law to keep foreign Christian-hating Communists, Marxists, and Socialists out of America. GOP belives those who seeks to enter the U.S. must love the United States. GOP will seek to use extreme vetting to ensure that jihadists and jihadist sympathizers are not admitted.
5. Stop Sanctuary Cities
Republicans will cut federal Funding to sanctuary jurisdictions that release dangerous Illegal Alien criminals onto our streets, rather than handing them over to ICE. GOP will require local cooperation with the Federal Immigration Enforcement.
6. Ensure Legal Immigration System Puts American Workers First: Republicans will prioritize Merit-based immigration, ensuring those admitted to the country contribute positively to Society and Economy, and never become a drain on Public Resources. GOP will seek to end Chain Migration and put American Workers first.
7. Some other plans: Some in Republicans circle have proposed to bring
- Denaturalization taskforce to vet previously naturalized citizenships.
These reforms GOP has planned will still have to adhere to the legal and constitutional principles and current laws in the book. Therefore, any aggressive reforms and the excutive actions may get entagled with U.S. courts system if the courts find these reforms and the excutive actions lack legal standing.
Some of these reforms will require a legislative action from the U.S. Congress, therefore, the reform will take its course as these go through congressional committees.
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