After Immigration & Customs Enforcement scaled down its presence in Minneapolis last month, media headlines about immigration enforcement have dialed back, but the agency’s work—which was recently a cornerstone of President Trump’s State of the Union address—hasn’t diminished.
While workplace raids under the Trump administration have so far focused more on employee detention and less on employer penalties, the risks of being out of step with federal compliance around immigration rules are still significant.
Immigration law attorney Jamene Christian advises employers to be thoughtful about addressing potential immigration compliance risks, including:
- Document mismanagement: HR needs to ensure forms like Employment Authorization and Temporary Authorization Documents are up to date to avoid employees working on expired or revoked credentials.
- Misinterpretation of Automatic Extensions: Immigration policies are shifting quickly, and HR has to keep up, Christian says. Last fall, the Department of Homeland Security updated its policies to largely terminate the Automatic Extension program that enabled employees in certain situations to continue working when their work authorization expired.
- Returned EAD: Employers must ensure accepted EADs have not been marked for return to DHS because of a change in status.
- Counterfit materials: Christian says employers can find themselves in the crosshairs of federal immigration officials if they have a history of accepting documents—from passports to EADs—that are counterfit or don’t match the employee’s identify.
- I-9 mistakes: Inconsistencies in Form I-9 processes—such as inaccurate reporting of new hires or form corrections—can raise red flags.
Lowering the risk for compliance issues
Given the Trump administration’s ongoing focus on immigration enforcement, tightening immigration compliance will be increasingly critical for HR professionals looking to reduce risk. Noncompliance can lead to heavy fines and penalties, as well as the potential for long-term DHS oversight, Christian says.
To avoid those outcomes, HR should ensure it employs a professional trained in foreign-national work authorization procedures, and should consider retaining a business immigration lawyer as well.
Technology can also play an important role in bolstering immigration compliance, says Christian.
For instance, tech can track validity dates for EAD/TA forms, alert employers when DHS regulations change and help employers avoid human error in record-keeping. HR can also tap tech to support manager and leader training around immigration policies, and to prepare the HR function and overall organization for a potential ICE review or audit.
Yet, utilizing tech can bring its own challenges, such as data breaches and noncompliant software. Overreliance on technology for immigration compliance, Christian says, can create a “false sense of security.”
“Though technology will close gaps,” she says, “at the end of the day, it’s the employer who remains accountable to DHS/ICE.”
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