U.S. Justice Department headquarters in Washington. Photo: Mike Scarcella/ALM

The Trump administration made its stance clear that there would be a crackdown on illegal immigration, signaling that federal authorities would quadruple their efforts and businesses should be prepared to comply.

In one of the clearest signs of the shift, federal agents from U.S. Immigration and Customs Enforcement targeted 7-Eleven stores, from Los Angeles to New York, in an effort to confront companies suspected of employing undocumented immigrants. Certain industries saw an uptick in audits and visits from agents, putting employers on guard and preparing for an increase in I-9 audits, record-keeping audits and unannounced site visits.

Now, California is in the spotlight and facing a lawsuit from the federal government that challenges the state’s immigration laws. Management attorneys and companies in the state are watching the litigation closely. A discovery hearing in the lawsuit was set for Wednesday.

“There’s a lot of different stuff going on simultaneously,” said David Jones, a Memphis-based partner at Fisher & Phillips who specializes in immigration and labor law. “We are closely watching this. It puts employers on this tightrope: They have ICE on the one side saying, ‘This is how you have to do things.’ And they already have to make sure they don’t go too far and that they aren’t discriminating.”

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When ICE knocks, any resistance from an employer could run the risk of an escalated scope of an audit, according to management attorneys. In California, a new state law, which DOJ is challenging, says companies cannot voluntarily allow ICE to access workplace records. Companies in California must weigh fines that would be imposed by the new law. Jones said the California law and the Justice Department’s lawsuit enhances the balancing act for employers.

ICE will likely continue to target certain industries, including janitorial services and the food industry, said Charles Thompson, an Ogletree, Deakins, Nash, Smoak & Stewart shareholder in San Francisco. He said employers, particularly large ones, know the law and the vast majority of employers won’t have to deal with the issue.

“The question is whether Jeff Sessions and his lambasting of the mayor of Oakland, whether that somehow changes what employers are doing. I think the answer is no,” Thompson said. “This is a fight between the state and the federal government, but until that is resolved, you still have to comply with state law. Most employers recognize that.”

The Sessions-led Justice Department has brought a new type of immigration enforcement, Thompson said. “They aren’t just going after criminals,” he said. “You can read in the paper how they are deporting someone who runs his or her own business and has lived here for years.”

California’s laws imposing restrictions on federal immigration enforcement in the state “are on the books and those lawyers have to comply with them,” Thompson said. “A lot of what the federal government is saying right now is drama, but it doesn’t relieve employers from California law.”

There’s a new focus on immigration-related training with clients, in and out of California, said Justin Parsons, managing director of Erickson Immigration Group. The business immigration services group works largely for technology companies.

“We have been advising clients about how to respond when an enforcement agency comes to their doors,” Parsons said. “They are walking a line wanting to comply with federal law and what is the California state law. It’s been a balancing act for our companies.”

Blue-collar companies have been targeted so far, but Parsons said he expects enforcement to trickle up to the large-scale technology industry. He said his group has been doing training with corporate clients to prepare them, including what information should be given to an officer and what employee documentation needs to be in place.

Companies are increasingly asking for training and guidance on immigration. The divide between California and the federal government creates more challenges.

“We are seeing companies across the country becoming more aware of the importance of compliance,” said Courtney Noce, an Atlanta-based shareholder at Greenberg Traurig who focuses on business immigration. “Inspections are more front of mind than they were in the past.”

 

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