In the past 17 months, the Trump administration has issued far-reaching executive orders (EOs) that require the U.S. government agencies overseeing immigration to shift their focus from assisting immigrants to making it harder for them to remain in the United States. Although no new laws or regulations have been passed, the effects of the policy changes reflected in the EOs are real and ongoing. These changes will have a particularly significant impact on the construction industry given its historical and wide use of undocumented workers as well as foreign nationals.
Changes resulting from the EOs include those related to the processing, review, and eventual issuance of work visas; and to the entry process at U.S. borders and airports. There are increased vetting procedures at both the stateside U.S. Citizenship and Immigration offices and the U.S. consulates overseas. Applications are being questioned more rigorously, and the issuance of work visas or green cards will be delayed, making it harder for foreign nationals to work in the United States legally.
The Trump administration declared that numerous immigration programs will end in the next 12 to 18 months. These include the temporary protected status (TPS) program, which has kept foreign national workers employed in the U.S. construction industry for over 20 years. The TPS program will end for hundreds of thousands of foreign nationals from:
- Nicaragua (on Jan. 5, 2019);
- Haiti (on June 22, 2019);
- El Salvador (on Sept. 9, 2019); and
- Honduras (June 5, 2018).
The U.S. Department of Homeland (DHS) Secretary will assess conditions in Honduras to determine whether to extend, re-designate, or terminate TPS for Hondurans at least 60 days before July 5.
The Trump administration also rescinded the Deferred Action for Childhood Arrivals (DACA) program, as of March 5. In response, immigrant advocate groups pursued legal actions. As a result, federal court orders have allowed DACA renewals to be filed using the same procedures that existed prior to the Trump Administration’s Sept. 17, 2017 rescission announcement.
Raids, Audits and Investigations
Arrests by the U.S. Customs and Immigration Enforcement (ICE) increased by 30 percent in fiscal year 2017, according to a study by the Pew Research Center. Immigrant advocates and analysts attribute that jump to the wider net cast by the DHS, which is now arresting people whose only offense is breaking immigration laws. Due to the significant drop in border crossings, ICE is concentrating on interior enforcement, conducting raids, audits, and investigations at both offices and building sites, and targeting certain industries to emphasize the Trump administration’s compliance message.
Prepare Your Business, Protect Your Workforce
Employers should now take the following steps:
- Conduct internal I-9 employment verification form audits;
- Review payroll records against I-9 records;
- Review E-Verify usage to ensure compliance;
- Identify foreign national employees to determine who has employment-limited documentation; and
- Begin processing any employment authorization document (EAD) cards for DACA holders to ensure extensions.
Prepare employees for a possible raid by advising them, in a public forum, to carry identification documentation as well as a copy of their passport and green card, if applicable, to present proof of nationality. Advise them that, in the event of a raid, they need not answer any questions from ICE, and will be protected.
To alleviate workforce anxiety and prevent major disruption, educate frontline management on what to do in the event of an ICE raid. Provide them with a one-page document, “What to Do in the Event of an ICE Raid,” which could include advice to: designate and delegate a few employees only to form of a rapid response team charged with speaking to the ICE agent; request to see a signed and dated warrant or a signed and dated notice of investigation (NOI); request three days to provide documentation in the NOI; and contact immigration or criminal counsel immediately and before speaking to ICE.
Train human resources and/or compliance staff on I-9 completion, maintenance, E-Verify usage, and ICE investigation and raid preparation. It is important to show the DHS and ICE that the company is complying with the Trump administration’s immigration agenda and existing immigration laws.
Maria Mejia-Opaciuch, senior counsel in the immigration practice group at Carlton Fields, is responsible for all of the firm’s business immigration work. She can be reached at firstname.lastname@example.org