On January 25, 2017, the Trump administration turned its focus to immigration by issuing two executive orders satisfying key campaign promises. At first blush, the executive orders appeared to cover issues related to illegal immigration and the building of President Trump's border wall. But on a closer look, these executive orders appear to be the key building blocks associated with the Trump administration's immigration strategy.
Executive Order: Enhancing Public Safety in the Interior of the United States
The "Enhancing Public Safety in the Interior of the United States" executive order has a stated purpose of "[e]nsur[ing] the faithful execution of the immigration laws of the United States, including the [Immigration and Nationality Act], against all removable aliens." To execute this purpose, the order targets "sanctuary jurisdictions" and expands the enforcement priorities associated with undocumented immigrants in the United States. In doing so, however, there is a dramatic increase in resources for Immigration and Customs Enforcement (ICE).
U.S. law prohibits government entities and officials from stopping another from sending or receiving information related to citizenship or immigration status of any individual. Jurisdictions that refuse to transmit citizenship or immigration information are called "sanctuary jurisdictions." The Trump administration now looks to entice information sharing from these jurisdictions by blocking federal grants and funding, except funding that is necessary for law enforcement purposes.
In addition to attempting to defund sanctuary jurisdictions, the Trump administration also seeks to fulfill key campaign promises about deporting undocumented immigrants with criminal records. To do this, the executive order announces new enforcement priorities directing the Department of Homeland Security to remove those immigrants who:
- have been convicted of any criminal offense;
- have been charged with any criminal offense, where such charge has not been resolved;
- have committed acts that constitute a chargeable offense;
- have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
- have abused any program related to receipt of public benefits;
- are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
- in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
These enforcement priorities are markedly different than the priorities used by the Obama administration. Specifically, the Trump administration broadens the types of crimes that would make an individual subject to removal from a felony to "any criminal offense." In addition, the Trump administration adds different enforcement categories such as: (1) having committed acts that constituted a chargeable offense; (2) having engaged in fraud or willful misrepresentation in connection with completing a Form I-9 or application for immigration benefits; and (3) having abused any program related to receipt of public benefits. There is no doubt that more individuals will be subject to removal under the Trump administration than under the Obama administration.
But each administration must grapple with resource issues. Therefore, to accomplish this ramp-up in deportations, Trump's executive order authorizes ICE to hire 10,000 new immigration enforcement and removal officers. This increase in resources is likely to hit employers the hardest of any of Trump's initiatives. Expect a dramatic increase across the country in employer raids by ICE in an effort to penalize companies that are employing undocumented immigrants. Companies should review their Forms I-9 to ensure their workforces are compliant with federal law.
Executive Order: Border Security and Immigration Enforcement Improvements
Securing the southern border of the United States became a cornerstone of President Trump's campaign. The "Border Security and Immigration Enforcement Improvements" executive order is the Trump administration's attempt to fulfill the campaign promises about building a wall on the U.S.-Mexico border. It accomplishes these goals by calling for the immediate planning, designing, and construction of a physical wall.
To pay for the wall, the executive order instructs the head of each executive department and agency to "identify and quantify all sources of direct and indirect Federal aid or assistance to the Government of Mexico on an annual basis over the past five years." The Secretary of State is to gather this information and present findings to the president within 60 days. So while Mexico may not directly finance the border wall, the executive order hopes that Mexico will indirectly finance the wall by way of lost revenue sources from the United States.
Similar to the executive order on interior security, this executive order calls for the dramatic increase and expenditure of resources for the U.S. government. Specifically, the executive order calls for increasing the number of detention facilities along the southern border and the hiring of 5,000 additional Border Patrol agents in addition to the resources to build the wall. This increase in resources is less likely to impact employers and practitioners in the United States than the increase in ICE agents.
Finally, this executive order calls for the end of the "catch and release" program implemented by U.S. Customs and Border Protection (CBP). In general, "catch and release" was a policy whereby individuals trying to illegally cross the U.S. border were allowed to remain in the United States after their violation of U.S. immigration law until an actual order of deportation was issued at a deportation hearing. The increase in resources on the border, including the increase in detention facilities, will provide CBP the ability to actually detain individuals crossing the border until a deportation order was issued.
So what does all of this mean to employers and practitioners in the United States?
There is little direct impact on employers and practitioners in the United States from these executive orders. But they will become the cornerstone for Trump's immigration policy during his presidency by dramatically increasing the workforce of the Department of Homeland Security.
The enforcement priorities set forth by the Obama administration were largely dictated by the available resources of ICE. During Obama's administration, ICE simply didn't have the resources to gather a larger population of undocumented immigrants for deportation. While this may have been by design, the enforcement priorities fit the resources allotted to ICE. Now, the resources have been expanded to fit the much broader enforcement priorities under the Trump administration.
But the expansion in resources likely means that investigations on employers to discover undocumented immigrants will also increase. The focus of these raids will likely initially be on Form I-9 compliance. Employers and practitioners worried about the possibility of increased enforcement should immediately review ICE's and OSC's guidance from 2016 on internal I-9 audits and consider conducting one to ensure compliance. Employers can then take appropriate action if they discover deficiencies in their documentation.
In addition to compliance with Forms I-9, there will likely be an increase in intra-agency investigations. Many rumors are swirling about immigration reform with the Trump administration taking a hard look at visa abuse in many of the employment-based visa categories. Moving forward, the Trump administration may use this increase in ICE personnel to act as the tip of the spear for other immigration-related abuses. For example, ICE may be tasked with gathering additional documents, such as public access files, for the Department of Labor to similarly perform compliance audits.
Areas of focus for the Trump administration could include:
- forms I-9;
- public access file (PAF) compliance for H-1B and E-3 visa holders;
- labor certification compliance for H-2A and H-2B programs;
- prevailing wage compliance for LCA-mandated visa categories;
- prevailing wage compliance for green card holders;
- worksite compliance with employment-based visa categories; and
- appropriate employment relationships with third party placed visa-holding employees.
It is highly likely that employer-related raids will increase under the Trump administration. While the initial immigration-related executive orders passed by the Trump administration may not appear to directly impact employers, the impact of their expansion in resources will be felt by employers in the long run. As a result, employers and practitioners should begin to prepare for these compliance checks by government agencies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
