(This column originally appeared in the Inquirer)
In the early weeks of the second Trump administration, U.S. Immigration and Customs Enforcement has increased activity, including in the Philadelphia region, where ICE raided a car wash last week and sent seven undocumented workers to jail.
“There will be enforcement actions directed against a small percentage of companies,” said Lindsay Eury, an attorney at the Philadelphia-area immigration law firm Solow, Hartnett and Galvan.
“ICE is likely looking at companies right now that they think and/or know are hiring undocumented immigrants,” Eury said. “Assuming that they can find resources, we do expect to see an increase in on-site inspections and audits for other employers.”
Here are some things all small businesses can do.
Participate in E-Verify
Nigel Scott, an immigration attorney at Aegis Law in Philadelphia, recommends that employers use the government’s E-Verify system to double-check all of their employees’ work status.
E-Verify is an online system run by the U.S. Department of Homeland Security and the Social Security Administration that helps employers enrolled in the system verify the employment eligibility of prospective and current employees.
“By cross-referencing information on file with these two government agencies, an employer can get a little bit of reassurance that that the employee is authorized to work in the U.S.,” Scott said. But, he noted, the system is “not foolproof.”
E-Verify is required in some states, but is voluntary in New Jersey and Delaware. It’s also voluntary for employers in Pennsylvania but it’s required for companies in the construction industry. Illinois, on the other hand, has placed limits on using E-Verify.
Scott recommends the system as a “strong safeguard” that can help avert “any blowback to the employer” if there’s an investigation. He also says to pay attention to, and act on, any red flags.
“If there’s a mismatch that comes back don’t ignore that issue,” he said. “It may be just a simple clerical or typographical error, but it could also be something more substantive.”
Complete the I-9 form
The I-9 Employment Eligibility Verification form is used by U.S. employers to verify the identity and employment authorization of new hires. The form is required for all paid employees.
“It’s a good idea to make sure you have all of your I-9 forms completed and saved and it may be worthwhile to again verify the information on this form with all your employees,” said Scott.
Eury recommends having a single point of contact at your company who can work with employees on submitting the right documentation — such as a passport, permanent resident card, driver’s license — who would also deal with any potential ICE queries. This person should be trained on recognizing the different types of documentation and on how to respond to any questions from the government.
Repeated violations of this requirement could result in fines as much as $27,894 per employee. Under U.S. law, employers who knowingly hire undocumented immigrants can face civil fines and criminal penalties, including jail time, if they are shown to have engaged in a “pattern or practice” of violations, according to the Immigration Reform and Control Act of 1986.
“While punishing fines can be levied for hiring undocumented [workers], fines can also be imposed solely for paperwork violations,” said Eury. That could include not completing the forms in a timely manner or failing to properly sign and date them.
Maintain good records and do not discriminate
Whether you keep originals of your forms in your office or scan and upload to an online storage service, it’s important to keep all of your records available and well-organized. “It’s the best way to protect yourself,” said Scott.
For current employees, employers must keep Form I-9 on file for the entire duration of their employment. For former employees, employers must keep Form I-9 for the later of three years after the date of hire, or one year after the date employment ends.
Scott also warns that, when collecting and verifying this information, all employees must be treated equally.
“Whatever you do make sure you do it across the board,” he said.
Be considerate and empathetic
The federal government’s recent actions can be stressful for some workers. Both Eury and Scott recommend communicating with employees about the situation and fully explaining the steps being taken to minimize any disruption or impact to their job performance.
“Some employers may want to consider making counseling available,” Scott said. “Others may want to help their employees by retaining an immigration attorney on their behalf who can help them understand the law or even help them file necessary paperwork.”
Scott says many immigration attorneys can represent both employers and their workers. Many also have networks of professionals that can address specific issues and work closely with the Department of Homeland Security and ICE.
“Making this resource available will mean a lot to an employee,” he said. “It will show how much you care about their well-being.”
