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Trump Administration may Implement Immigration Worksite Enforcement Measures

By:  Santiago J. Padilla, Esq.

The American Immigration Lawyers Association ("AILA"), of which I am a member, came out this week and advised that it expects the Trump Administration to move forward with significant worksite enforcement actions, including immigration raids of employers (as had been done in the Bush Administration, e.g., Swift & Co. in 2006), site visits for companies that hire nonimmigrant workers (e.g., H-1B, L-1A, J-1, etc.), and Form I-9 enforcement, including auditing of the E-Verify process. Based on this warning, U.S. employers need to make sure that their house is in order.

In particular, all employers must ensure that their Form I-9 policies ensure proper completion of the Forms I-9 for all employees and should seek to implement E-Verify when possible. The Form I-9 is an interestingly complex form, because it contains several traps for the unwary. For example, a Form I-9 must be filled-out for every new employee within three (3) business days of commencing work with the employer. If that does not happen, the employer is subject to penalties. While many may think that this is simply a "technical" violation, the Department of Justice's Office of the Chief Administrative Hearing Office ("OCAHO") has held that such failure is a "substantive" violation that could subject the employer to significant fines. In particular, while the employer has an opportunity to correct "technical" violations, there is no opportunity to correct "substantive" violations.

Other traps include using the wrong version of the Form or a version that is outdated. Specifically, this happens when an employer seeks to correct its failure to have filled-out the Forms I-9 and then seeks to use the current form.  Yet, under the law, the employer must use the Form that was current at the time that the employee commenced work, otherwise the employer is again subject to penalties. The most common error that employers commit is using a current Form I-9 for employees that commenced work several years ago. That is incorrect except for employees that need "re-verification", which generally means that their immigration status has changed and the previous Form I-9 must be updated.

In any case, to the extent Form I-9 audits and enforcement will increase during the Trump Administration, it is imperative for employers to prepare as soon as possible, such as performing informal internal audits.

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If you have any questions regarding employment law, immigration or other legal issues, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at 800-483-7197800-483-7197 FREE or by sending an email to [email protected].

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