Immigration enforcement has been a top priority under the Trump Administration. Audits and raids of workplaces by Immigration and Customs Enforcement (ICE) were at an all-time high prior to the COVID-19 crisis. Then, on April 21, 2020, President Trump announced a full suspension of any immigrants to the United States. While this does not currently impact H-1B, employers should prepare for their obligations both during and after the COVID-19 crisis.

What to Do When ICE Shows up at the Worksite

Although some employers knowingly violate U.S. immigration laws, most of the time employers are unaware they are hiring or employing undocumented immigrants. These employers can be severely impacted by ICE audits and raids if they are not prepared and do not know their rights and obligations when ICE does show up.

First and foremost, construction companies should be aware that ICE can enter any public area—for example, an open worksite—without any kind of warrant. If ICE officials enter a public area and encounter an undocumented immigrant, they can take that individual into custody. ICE also may speak to employees in the public area. The employer may inquire as to what is going on but cannot interfere with ICE’s actions.

Private areas, such service areas and offices, however, are a different story. Without a judicial warrant, ICE does not have the right to enter private areas or speak to employees. The officers will sometimes have ICE warrants, which are agency documents regarding the arrest and detention of an individual that have not been reviewed by a judge. These “warrants” carry no legal authority and do not give ICE the right to enter any private work areas.

And, even a judicial warrant may not give ICE the authority to search a business. An arrest warrant for an individual only allows them to arrest that individual. While the employer should cooperate and try to summon the individual to appear, an arrest warrant alone does not authorize ICE to search the premises for the individual. For that, ICE would require a search warrant.

Given these distinctions, if ICE arrives at a worksite, carefully inspect the warrant to determine whether it is valid and to understand exactly what obligations the company has. Verify that the warrant was signed by a judge and that it has the correct information.

Verify the scope of the warrant: i.e., determine if it allows the ICE officer only to arrest someone, search the premises or question people. Do not consent to a search. Although consent is not required to carry out the terms of the warrant, consent to a search can expand what the officers can do beyond the warrant’s scope.

If the warrant does allow ICE to enter and/or search private spaces, obtain the names of the officers and supervising agent and call an attorney. A company representative should accompany the ICE officer through the premises and take note of all actions and statements made by the officer, although the company’s rep should not mislead, impede, or interfere with the officer’s actions.

Employees also should not speak to ICE officers unless directed to do so by the warrant. If an officer questions an employee without authorization, the employee should direct the officer to the designated company representative. To ensure this is properly handled and to minimize worksite disruption, designate representatives for this purpose and ensure that they are coached on the proper actions.

Form I-9 Reviews During COVID-19 Crisis

In late March, the U.S. Department of Homeland Security announced that it will defer the requirements for employers to review Form I-9 documents in-person with new employees, due to the COVID-19 pandemic. The change applies to employers and workplaces that are operating completely remotely; the physical documentation review requirements will not be excused if any employees are physically present at a work location, according to the Society for Human Resource Management. Employers must still inspect the Section 2 documents over video conference, fax, or e-mail and obtain and retain copies of the documents within three business days. Employers are instructed to enter “COVID-19” as the reason for the physical inspection delay in the additional information field in Section 2.

Once normal operations resume, all employees who were onboarded using remote verification must report to their employer within three business days for in-person verification of their identity and employment eligibility documentation, SHRM reports. Once the documents have been physically inspected, the employer should add “documents physically examined” with the date of inspection to the Section 2 additional information field.

The provisions are in effect until May 19 or within three business days after the termination of the national emergency, whichever comes first.

To avoid liability and ensure that the company is complying to the best of its knowledge, begin by reviewing I-9 files and policies. Ensure that every employee hired after Nov. 6, 1986 has properly completed and documented I-9s.

Ensure there are protocols in place to properly handle any ICE visits or requests. While these actions will not prevent an ICE raid or audit—or even automatically uncover undocumented workers—they will limit potential liability.

Financial Considerations

Fiscal year 2021 has brought a significant change to H-1B Cap Season. Starting this fiscal year, rather than file a complete H-1B package in April for lottery consideration, employers registered for the lottery March 1, 2020, to March 20, 2020, providing basic information about the company and each worker entering the lottery. The registration had to be done electronically and required a $10 H-1B registration fee per application.

Despite the close of the registration window on March 20, USCIS has not yet released the total number of registrations. If there were more registrations than visas available, which was expected, a lottery was to be conducted on those registrations, and only those selected will be able to file cap-subject H-1B petitions in FY 2021. If there are fewer registrations than available visas, USCIS may extend the registration process.

Notifications of acceptance in the H-1B lottery were to be issued by March 31. Employers were then able to file the corresponding H-1B petitions on or after April 1, and must file within 90 days.