May 25, 2020

Batten Down the Hatches, an ‘ICE’ Storm Is About to Blow In…

It’s official! Immigration and Customs Enforcement (ICE) will extend its immigration actions in the workplace.

Since the 2016 election, we have talked with employers about the effect the Trump administration’s policy on immigration could have in the workplace. 

On Oct. 17, the acting director of ICE, Thomas Holman, announced that the agency intends to quadruple the number of worksite enforcement actions throughout the country. This means employers should expect a dramatic increase in the number of Form I-9 inspections initiated by ICE. These inspections involve ICE agents auditing an employer’s Form I-9s and other employment records to evaluate whether the employer properly verified its employees’ work authorization statuses and to determine whether the employer is employing unauthorized aliens.

Employers face significant fines for substantive mistakes when completing the Form I-9 or for knowingly employing undocumented workers. More importantly, employers should expect more ICE I-9 inspections to morph into criminal prosecutions of businesses, managers, owners and employees who allegedly hire and employ undocumented immigrants. For example, ICE recently announced a record-setting fine of $95 million against a tree-trimming company with operations throughout the United States.

In addition to increased workplace investigation by ICE, United States Citizenship and Immigration Services (USCIS) has also greatly increased its site visits to verify compliance with rules and terms of employment for employees holding nonimmigrant visas in the categories of H1B, L1, O-1 and R1 status.

Employers should consider preparing for these anticipated enforcement actions, particularly in the food service, hospitality, manufacturing, construction and agriculture industries, which ICE tends to target. To do so, employers should consider implementing a robust immigration compliance program, including:

  • an immigration compliance policy;

  • step-by-step procedures for completing the I-9 and responding to “no match” notices;

  • regular internal I-9 audits;

  • an ICE audit or raid response plan;

  • protocols for managing USCIS – ICE Fraud Detection & National Security (FDNS) visits for nonimmigrant visa employees; and

  • regular, effective training of your immigration compliance team.

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About this Author

Michael Palmer Barnes Labor and Employment Litigation Law Attorney Thornburg Law Firm South Bend and Grand Rapids
Partner

Michael Palmer is a partner in the South Bend, Indiana and Grand Rapids, Michigan offices of Barnes & Thornburg LLP. He primarily represents private and public sector employers in all aspects of labor and employment law. Mr. Palmer also devotes a portion of his practice to fair housing issues.

In his labor and employment practice, Mr. Palmer handles union-related issues, employment litigation, general employment counseling, and immigration compliance. In union-related matters, he represents management in union organizing campaigns and...

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Mercedes Badia-Tavas Immigration Attorney
Partner

Mercedes Badia-Tavas provides legal and business guidance to clients on a broad range of immigration law cases, with focus on Fortune 500 and small companies alike. Mercedes supports her firm’s offices and clients across various states on immigration employment transfers and up-to-date compliance.

As an immigrant herself, Mercedes finds particular fulfillment in helping companies and individuals immigrate to the United States and participate in the American dream through startups and business transactions that also can benefit the U.S. economy.

Mercedes attributes much of her practice today to her dedication to resourcefulness from years of experience, meticulous preparation and organization skills. This entails a thorough understanding of her client’s industry, operations, culture, practices and financial goals in order to lay out realistic expectations and alternative strategies, as needed. Mercedes believes in being organized in her approach and documentation as a way of helping her clients manage costs. She and her team are committed to employing systems-driven tracking, timely updates and follow-ups with clients, and being pragmatic when unexpected issues arise.

Mercedes advises on a range of employment-based immigration needs, including temporary (nonimmigrant) and permanent (immigrant) visas for executives, managers, investors, professionals, aliens of extraordinary ability, and essential, specialized and skilled workers. She works hand-in-hand with clients on their corporate global mobility policies and compliance documentation regarding sponsoring foreign nationals for employment-based visa classifications. She is regularly involved in I-9 Employment Eligibility Verification (EEV) and H-1B Labor Condition Application compliance.

Mercedes also provides in-house and on-site training on immigration planning for personnel transfers, immigration-related due diligence for mergers and acquisitions, consular applications, and naturalization and citizenship initiatives. She guides clients through internal immigration program administration and monitoring, and trains human resource personnel and other managers on the evolving areas of immigration law and practical integration of immigration policies, procedures and compliance statutes to everyday business operations.

Born in Cuba and bilingual in Spanish and English, Mercedes has sincere compassion for and sensitivity to her clients, keenly aware of the legal land mines and tedious pathways they would navigate through the U.S. immigration system. Whether Mercedes is advising on an immigration matter for an individual relocating from abroad, transferring within the U.S. from another employer, entering the U.S. workforce from student status, looking to build a U.S. business or someone part of a cultural exchange program, she provides her experience with the same strong zeal and commitment toward the best outcome.

Notably, Mercedes has been featured on NPR and Spanish-language broadcasts on immigration topics, many of which included audience call-ins. Prior to joining Barnes & Thornburg, Mercedes had built her own legal practice over nine years as the founding partner of Badia-Tavas Law Group, representing similar categories of clients she now services, with a little more individual and family-type immigration cases involved. She has traveled and lived throughout Latin America.

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