Executive Orders on Immigration: Impacts for Businesses 30 Days Into the New Administration

Three new executive orders could add responsibilities and risks for businesses employing immigrants. The orders put more federal resources toward gathering information, enforcing immigration laws and prosecuting offenses. Businesses should take proactive steps to get up to speed with and prepare for these changes.

How do the latest executive orders change immigration enforcement?

All issued Jan. 20, these orders target different aspects of immigration law enforcement. One outlines specific processes for the detention and removal of those living in the country illegally who have violated federal or state law, as well as filing criminal charges against them. It calls for the construction of physical barriers, added personnel at the southern border, and the resumption of policies restricting entry into the U.S. It also prioritizes the prosecution of border-related offenses.

Another reiterates the administration’s goal to remove inadmissible and removable immigrants. It directs the Attorney General and Secretary of Homeland Security to create Homeland Security Task Forces to “end the presence of criminal cartels, foreign gangs, and transnational criminal organizations throughout the United States.” It also calls on the Secretary of Homeland Security to identify and publish information on unregistered immigrants and requires the Office of Management and Budget to stop providing public benefits to immigrants not authorized to receive them.

The third declares a national emergency at the southern U.S. border. It authorizes the deployment of military personnel to assist the Department of Homeland Security and allows the Secretary of Transportation and Federal Communications Commission to waive regulations to counter unmanned aerial systems near the border. It also mandates regular reports on border conditions and potential further actions.

Worksite enforcement activities will likely increase in the coming years. These executive orders and subsequent guidance from the Department of Homeland Security make clear that the breadth and scope of enforcement initiatives (including worksite enforcement) will be subject to the discretion of agents and officers, who will use a “common sense” approach when completing enforcement.

The new enforcement policies will likely have effects among foreign employees, whether present in the U.S. lawfully or unlawfully. This means employers who rely on foreign labor pools may see more callouts – especially when enforcement activities occur within their locality.

What can businesses do to prepare?

1. Consult with an immigration attorney. Counsel can help you get the full picture of your responsibilities under federal and state immigration laws and help you respond to any questions from employees or authorities.
2. Complete Form I-9 Employment Eligibility Verification audits.
   • Ensure that employment eligibility records (Form I-9s) are orderly and available for production within three days’ notice from the Department of Homeland Security.
   • Reconcile any paper documentation errors and omissions and complete any missing Form I-9s if possible.
3. If you hire internationally, prepare to manage foreign employees who come forward and disclose that they have no lawful employment eligibility. American employers may not knowingly hire or continue to employ an individual who lacks employment authorization.
4. Provide employee training to help them have safe, civil conversations if they are questioned by officials. ICE officers may approach them at home or work. Make sure they know they have the right to remain silent and that they do not have to sign any documents without speaking with a lawyer first. 
5. If approached, you can ask to see a warrant or identifying information. Or, if given the option, you may be able to respectfully decline to assist.
   • Review the warrant and ask to make a copy or take a picture.
   • Ensure that the agents do not exceed the scope of the warrant. If they attempt to search areas not listed, politely point this out.
   • Designate an observer to observe the search and take notes on the areas searched, items seized and conduct of the agents.
   • Only answer the questions the ICE agents ask. If agents ask questions, answer truthfully but concisely. It is your right to decline to answer questions without legal counsel present.
   • After the search, request an inventory list of the items seized by the agents.
   • Work with legal counsel to prepare a public statement if necessary, ensuring that it is accurate and does not compromise any legal proceedings.
   • Direct any media inquiries to a designated spokesperson or legal counsel.
6. Order or print "Red Cards" for employees to understand and communicate their rights. Cards are available in almost 20 languages. Employers can download cards at no cost.

Employers who experience labor losses should apply to the U.S. Department of Labor for permission to bring in guest labor through any applicable guest labor program (H-1B, H-1C, H-2A, H-2B). Guest labor programs recently expanded by providing supplemental visas that are now available globally. And guest worker visa flexibility is more practical than in prior years. 

Businesses that are serious about having a competitive edge in obtaining access to global talent pools should consult with immigration lawyers about the expanding work programs now available to employers who can prove need. 

Contact Candace Gregory, Brandon Davis or any other member of the Phelps white collar defense and investigations or immigration teams with questions or for advice and guidance.