Corporate considerations for Trump administration immigration-related activities.
By Nineveh Alkhas, Joseph B. Farrell, Erin Brown Jones, and Sandra Benjamin
Among the many developments in the first two weeks of the new administration, the Trump White House has taken a number of immigration-related actions, including declaring a national emergency at the southern border. Corporate stakeholders in legal, human resources, security, and management should be knowledgeable about and prepared to respond to the Trump administration’s immigration-related activities, many of which could directly impact public and private companies in the United States.
One example making headlines is the targeted immigration enforcement efforts by US Immigration and Customs Enforcement (ICE) in Chicago, New York City, and other locations, which have impacted and will continue to impact employers. Information regarding these enforcement efforts is available, as the agency is tracking daily arrests and detentions as part of this initiative. As part of its enforcement work, ICE and other authorized agencies may inspect Form I-9 records maintained by companies with advance notice. Failing to comply with or delaying an authorized inspection can result in fines or other legal consequences.
ICE agents also may also appear without warning to locate or detain workers as part of their investigative and enforcement work (sometimes referred to as an ICE “raid”). ICE agents, like the general public, are entitled to enter public areas of the workplace, such as a parking lot, lobby, or waiting area, without a warrant. The Fourth Amendment prevents ICE agents from entering other areas without permission or a judicial warrant.
Having a plan to respond to both of these types of interactions with ICE is critical, particularly for companies with workforces that may be targeted by ICE, including those with personnel who require visas or other immigration approvals to work in the United States. Engagement with ICE will likely be increasingly common during this period of focused enforcement, and companies should have appropriate policies, protocols, and training in place to respond to formal requests for Form I-9 records or unexpected visits from ICE. This type of advanced planning will put companies and employees in the best position to help limit business and personnel disruption, if and when such interactions with ICE occur.
Latham & Watkins is ready to support companies that are already interacting with ICE as well as those that want to prepare for potential interactions. Please contact your Latham point of contact or a member of the Executive Compensation, Employment & Benefits team for more guidance.