President Trump’s promise to carry out the largest deportation of undocumented individuals while simultaneously limiting the immigration of foreign workers is causing unique concerns in the hospitality industry. From resorts that rely heavily on seasonal workers through H-2B visas in the summer, to the homemade arepa-themed restaurant that relies on uniquely qualified Colombian, Venezuelan, or Panamanian chefs, employers in hospitality industry should be preparing for a potential flurry of activity.

There has been a lot of discussion (and worry) about enforcement action, including potential audits and “raids.” Let’s discuss the difference. First, U.S. Immigration Customs and Enforcement (ICE) is the government agency that audits whether employees are legally authorized to work in the United States. The centerpiece of ICE’s enforcement is the Form I-9, Employment Eligibility Verification (I-9) audit. All employers are required to keep I-9s on file, which document an employee’s work authorization.  ICE can either mail a notice of inspection or appear at the worksite to hand-deliver a notice of inspection. Once an employer receives a notice of inspection, the statute provides that an employer has at least three days for it to produce the I-9s. Often, the notice also requests payroll records, information about whether the employer uses contract labor, and whether the employer has received social security number mismatch notices.

A “raid” can occur after an audit or can be wholly unrelated to an audit and occur without notice. For example, at the conclusion of an I-9 audit, ICE will present the employer with a list of persons who do not have proper work authorization, and the employer is expected to terminate those employees within 10 days. If ICE suspects that the employer has not complied or if ICE finds that an employer knowingly hired or continued to employ unauthorized workers, a “raid” may follow to remove the unauthorized workers from the worksite. Similarly, an employer could be under audit by another government agency (e.g., the Department of Labor’s Wage & Hour Division), and information shared between agencies could result in an ICE raid.

Another example of a “raid” could be wholly unrelated to the employer, and the worker could be authorized to work. In this scenario, the worker may have committed a crime and subject to removal (deportation) from the United States. ICE may then choose to obtain a subpoena to enter the worksite, rather than the individual’s home, to execute the removal or deportation order. Unfortunately, the employer gets caught in the crossfire.

What can hospitality employers do to prepare for ICE audits and raids?

First, know the difference. If the company receives a Notice of Inspection, this is the beginning of an I-9 audit. Even if the notice is hand-delivered by ICE, the notice requires employers to produce the I-9s (and other documents) in three days. However, if ICE appears at the worksite with a judicially issued subpoena or warrant to immediately collect items or persons, this is a raid, and the employer must grant ICE access to the worksite to collect and detain or arrest persons. Note that an employer is not required to answer questions during a raid. 

Second, conduct an internal audit to ensure that the company’s I-9s are compliant. Either designate an internal core team who knows the I-9 process and how to remedy paperwork issues or utilize outside counsel (which allows the review to be protected under attorney-client privilege). It’s too late to conduct an internal audit if a company waits until ICE audits.

Third, understand how and where the company’s I-9s are stored. Can the company’s I-9s be produced in three days to comply with a notice of inspection? If stored electronically, audit for compliance with electronic I-9 rules and regulations.¹ If a third-party vendor is used to maintain electronic I-9s, ensure the vendor is compliant.

Fourth, designate a core team and develop a plan. Once a company receives a Notice of Inspection or ICE appears at the worksite, the deadlines are short and the situation becomes highly charged and stressful. To avoid panic, create an action plan that includes information such as who should be contacted and the legal and public-relations strategy.

Finally, be prepared for the flip side of immigration enforcement from the Trump administration. The Department of Justice has jurisdiction over discrimination issues associated with I-9s or misuse of visa programs. These types of enforcement actions include allegations that employers favor non-immigrant workers over U.S. workers.

Now is the time to prepare for the new administration’s enforcement actions, handle mismatch notices, and create a core team and a plan of action. Being in the hospitality industry simply means that employers must be prepared.