Page 20 - NC Triangle Vol 7 No 3

NAM DOUGLASS | Immigration Law
Winter is Here: How ICE’s Worksite Enforcement is Impacting Employers
Game of rones may have end- ed abruptly, but Immigration and Customs Enforcement
(ICE) is not ending its worksite inves- tigations anytime soon and employers are feeling the chill. As part of this ad- ministration’s focus on protecting U.S. workers, ICE is working in collabora- tion with the Social Security Admin- istration (SSA), the Department of Justice (DOJ), and the Department of Labor (DOL) to ramp up its investi- gations of immigration and labor law violations. Employers should be more thorough than ever in their practices and make compliance with employ- ment and immigration regulations a top priority.
NOTHING BURNS LIKE THE COLD
Fiscal Year 2018 saw a surge in worksite investigations, business au- dits, and arrests by ICE’s Homeland Security Investigations (HSI) divi- sion. Nationwide there were 6,848 worksite investigations compared to 1,691 in FY17, 5,981 I-9 audits com- pared to 1,360 in FY17, 779 criminal arrests compared to 139 in FY17, and 1,525 administrative worksite-related arrests compared to 172 in FY17.
Businesses were ordered to pay more than $10.2 million in judicial nes, forfeitures and restitutions. e current interagency cooperation al- lows HSI to leverage the investigative powers of the DOJ to access addition- al business records in these e orts.
Additionally, tips called into ICE or the DOL are more likely to lead to an investigation as we have seen rst-
hand here in the Triangle. It’s criti- cal for employers to know their rights in the event of a visit
from ICE. Companies should have a written plan and procedures in place to properly respond to any request made by these agencies. Sta should be trained on what documents ICE must produce before allowing agents to enter private areas of the work- place. Companies should conduct internal audits to ensure compliance with all I-9 requirements and E-Ver- ify, which is mandatory for all North Carolina employers with 25 or more employees.
SSA JOINS ICE IN ENFORCEMENT SURGE
In March 2019, the SSA resumed sending “no-match” letters inform- ing employers when names and social security numbers on their employees’ W-2s don’t match agency records. Mismatches may be the result of a ty- pographical error, name change, inac- curate record, or identity the .
While the letters are not proof that an employee is unauthorized to work, they can indicate a problem in the employee’s immigration status. While the SSA has no enforcement author- ity, an employer that ignores a no- match letter may nd itself on thin ice later during an I-9 audit and face civil or even criminal penalties. Employ- ers receiving no-match letters should make a good faith e ort to resolve the issue by notifying a ected employees and giving them a reasonable time to correct the error.
Employers should not take any im- mediate adverse action against an em- ployee as this would violate anti-dis- crimination laws. Employers may face the cold truth of deciding what comes next when a mismatch cannot be cor- rected. ey may want to consult with an immigration lawyer to see if the
employee’s work authorization can be resolved.
Companies should have internal policies in place to ensure they are giving the employee notice and op- portunity to correct the mismatch, not discriminating against the em- ployee based on his/her race, national origin or citizenship status, but also requiring termination upon knowing that the employee is not authorized to work in the United States.
DOJ and DOL Battle Employment Discrimination and Labor Tra cking In July 2018, the DOJ and the DOL began working together to increase investigations of workplace discrimi- nation. As a result, dozens of investi- gations have been launched, lawsuits led, and nes levied against busi-
nesses.
While protecting workers and root-
ing out labor tra cking are critical, the interplay of immigration and employment laws can be di cult for businesses to navigate. Federal law prohibits discrimination based on race, national origin, or citizenship status in the workplace as it relates to hiring, ring, recruiting, and employ- ment eligibility veri cation. ese laws impact everything from recruit- ment ads to the questions asked in the interview process. It a ects your on-boarding procedures, outsourcing contracts, and termination practices.
Business policies cannot favor American workers over immigrants and cannot treat immigrant workers di erently than American workers. Your human resource personnel serve as your rst line of defense. Train- ing is critical to ensure they are well- armed to take on this challenge.
Nam Douglass is an immigration attorney at Gardner Law PLLC, a full-service immigration law rm located in downtown Raleigh. She has experience counseling employers on I-9 and E-Verify compliance, representing em- ployers during I-9 audits, and representing employers and employees in complex business immigration cases. She is a member of the American Immigration Lawyers Association, the Federal Bar Association, and the North Carolina Advocates for Justice. Nam received her Juris Doctor from Campbell Law School, and holds bachelor’s and master’s degrees from Virginia Tech. For questions or more information please contact her at (919) 987-2101 or [email protected]. Visit the rm’s website at www.gardnerlawpllc.com.
ATTORNEY AT LAW MAGAZINE · NORTH CAROLINA TRIANGLE VOL. 7 NO. 3 20