How will Florida employers be affected by the Trump administration’s plan for immigration reform and what should they do to ensure that they do not fall afoul of increased immigration enforcement? President Donald Trump wants to protect the jobs, wages and security of Americans by securing American borders and enforcing U.S. immigration laws. Among other things, his immigration plan calls for constructing a wall, tripling the number of border agents, suspending so-called “sanctuary cities,” mandating the use of E-Verify and removing undocumented workers from the United States.
Restaurants, hotels, supermarkets and farmers, as well as real estate developers and construction companies are abundant in Florida where tourism is the number-one industry and the population is growing. In the food and construction industries, many of the jobs are lesser-skilled, wages are often low, margins are small and turnover is high. Although the enforcement of our immigration laws will doubtless affect employers nationwide, it comes as no surprise that employers in the construction and food industries in Florida are particularly concerned about the impact of President Trump’s immigration plan on their businesses.
It is very difficult to predict what form any comprehensive immigration reform will take. Since legislation must be passed in Congress, and Congress must also allocate funds to implement any new laws, and because immigration reform is such a divisive issue in Washington, any changes in the short term must come from within existing law. So what must employers do in order to comply with the increased enforcement of existing immigration laws?
Employers generally employ foreign workers pursuant to temporary work visas (H-2B visas for those employed temporarily in lesser skilled positions), or pursuant to work authorization granted as part of sponsorship for U.S. residency. Employers sponsoring employees on temporary visas must comply with certain document retention and prevailing wage requirements. And for all workers, U.S. and non-U.S. citizens alike, employers must comply with Form I-9 employment authorization eligibility verification requirements and verify the work authorization of, and timely and properly complete and maintain an I-9 Form for, each employee. Penalties for violations include fines and other civil penalties, as well as criminal penalties for repeated violations.
Intensified enforcement of existing immigration laws must necessarily involve an increase in investigations via audit letters from USCIS and on-site inspections or raids by ICE in order to determine whether an employer has violated I-9 or visa document retention and prevailing wage requirements, and to ferret out undocumented workers. Violations are likely to result in higher fines and other penalties.
As part of an overall proactive compliance review, employers of H-2B workers should ensure that they periodically examine their existing H-2B visa petitions and supporting documentation to ensure job locations, wage rates and employment duties remain current. Employers should train managers to complete I-9s properly and timely. An employer would be wise to hire legal counsel to undertake a formal audit to find errors and recurring issues in the company’s employee I-9 process. At the very least, the overall compliance review should include a self-audit of I-9 forms to determine full and timely compliance with the I-9 process.
Beyond this, employers should anticipate a higher likelihood that they will receive an on-site inspection and they should be ready for it. Although ICE and USCIS must provide three days’ notice of a site visit for an I-9 inspection, they often do not do so when visiting a restaurant or construction site in person, and certainly do not do so when looking for undocumented immigrants on the premises.
In these circumstances, employers should have an action plan in place to be implemented when an ICE on-site inspection or raid occurs. The company’s receptionist should know to notify the business’s primary human resources contact person. The company should have at least two designated representatives who know what steps to take. They should be able to distinguish between a visit by the USCIS Fraud Detection and National Security Directorate (FDNSD) and one from ICE. Visits by FDNSD usually relate to compliance issues for H and L visas, while ICE visits usually relate to I-9 worksite audits. If the visit is actually a raid by ICE seeking undocumented workers—as opposed to an audit of I-9 paperwork—then ICE will require a warrant.
Although employers should cooperate with the investigator, neither employer, nor employee should provide any statements without first consulting with legal counsel. Key information—such as the date, location, agency and agent’s name, employee name(s) and information requested—should be collected. Access should be limited to I-9 forms and copies of work authorization documents made during the I-9 process. For FDNSD inspectors, access should be limited to the company’s visa petitions and supporting documents and Department of Labor employment certification application files. And for an ICE raid, the purview of the raid should be limited to matters within the scope of the warrant.
Full implementation of the Trump administration’s immigration plan will have far-reaching effects in the construction and food industries in Florida. In the short term, employers should be much more proactive with compliance issues. Being so will prevent unnecessary expense, unauthorized workers and, ultimately, less worry about ICE knocking on the door.