Immigration crackdown: Is your program prepared?
CWS 3.0 - Contingent Workforce Strategies
Immigration crackdown: Is your program prepared?

main content
The Trump administration’s focus on removing undocumented immigrants from the US will affect some sectors more than others — e.g., construction, agriculture and food processing — but all employers should prepare for potential action, including possible fines.
The Executive Order, Protecting The American People Against Invasion, aims to maximize immigration enforcement by directing US Immigration and Customs Enforcement to prioritize the enforcement of laws related to the illegal entry and unlawful presence of undocumented individuals in the US. The order has components that will impact employers as well, including civil and criminal enforcement priorities.
“This means there could be an uptick in worksite enforcement actions at worksites,” Kerri-Ann Griggs, a partner in law firm Alston & Bird’s labor and employment group, told CWS 3.0. “The president confirmed as much in his impromptu press conference on Jan. 20, while signing the executive orders, and in the days since then, this has been effectuated.”
The order directs the Secretary of Homeland Security to ensure the assessment and collection of fines and penalties authorized under the law for ICE enforcement efforts against those unlawfully present in the US and from those who facilitate their presence. Employers that knowingly retain unauthorized workers may now be the targets of fines and penalties.
“A key feature of this executive order is the mandate to double down on fines and penalties for not only unauthorized aliens, but also those who ‘facilitate’ such aliens’ presence in the US — namely, employers of unauthorized workers,” Griggs says. “This order could have a significant impact for companies, as employers should anticipate an increase of I-9 audits, immigration enforcement actions, investigations and site visits related to immigration compliance.”
Employers should take proactive steps to ensure they are fully compliant with immigration laws, including conducting a robust I-9 audit and evaluating their hiring and onboarding practices to ensure compliance.
The staffing industry faces a particular challenge, as a hallmark of staffing companies is the speed at which they are able to find and place suitable workers onsite at the end client location or to have them work remotely, according to Griggs.
“In light of the executive orders and the subsequent flurry of memos executing on the mandate (including some imposing penalties on officials who exercise discretion by not prosecuting unauthorized individuals or not enforcing the law to the fullest extent), it behooves employers to conduct a self-assessment of sorts when it comes to their compliance efforts,” Griggs advises. “Compliance failures could not only lead to fines but uncontrolled loss of labor force and contracts with end-clients, especially federal contractors.”
Sector Impact
According to the Pew Research Center, unauthorized immigrant workers in the US accounted for the largest shares in occupations such as drywall/ceiling tile installers and tapers, 33%; roofers, 32%; painters and paperhangers, 28%; other agricultural workers, 24%; construction laborers, 24%; and maids and housekeeping cleaners, 24%.
The increased focus on immigration could impact contingent workforce programs focused on these sectors in a variety of ways.
There could be a reduction in the number of workers available due to individuals being detained or proactively taking themselves out of the workforce. For example, in an ICE enforcement action, even though ICE may have a warrant for a specific individual, their arrival on a worksite may lead to panic and workers may attempt to flee and not return, according to Griggs.
In addition, expect more civil and criminal penalties imposed on those who facilitated retention of unauthorized workers, including paying such workers through third parties.
“Reduction in labor force for manufacturing and blue-collar jobs will impact the economy — some businesses may struggle to stay afloat, and prices of goods and services might increase due to increased labor force costs,” Griggs says.
Staying Ahead of the Game
“Given the current increase in ICE enforcement actions, it is clear that there will be additional forms of worksite actions specifically related to legal immigration compliance,” Michael Freestone and Deborah H. Petito of law firm Offit Kurman wrote in a blog post.
The “worksite enforcement” actions cover enforcement of various immigration laws, including but not limited to I-9 compliance, immigration fraud and compliance under the H1-B and L-1 visa programs.
“Typically, these actions are large-scale enforcement actions with warrants, but they can also consist of a smaller team of agents following up on a business that sponsored a single individual,” the post states. “Paperwork compliance is critical for employers, and ensuring I-9 compliance is recommended for all employers.”
It is essential for contingent workforce program managers to ensure their suppliers and organizations are proactively prepared for the increased scrutiny. Suggestions include:
- Audit existing employment practices and preparation and implement proactive compliance measures covering impacted employment policies.
- Review I-9 compliance, potentially including an audit of I-9s.
- Prepare a Crisis Response Team and strategy, including a response plan for ICE enforcement actions and training for company leaders.
- Educate leadership, HR and compliance teams on ICE enforcement actions (what documents ICE can show up with; what action is authorized/not authorized by such documents; employer and employee rights), and then develop and implement ICE enforcement protocols at headquarters, offices and field locations, with pre-selected compliance contacts — who have also been trained on ICE enforcement actions — as the point persons to refer the government to in the event of an enforcement action.
- Identify company and outside counsel who should be the first individuals to contact if ICE arrives onsite.
As in many cases, a good defense beats a good offense, and preparation is paramount.
“Keeping up to date on changes in immigration and enforcement policies is key,” write Freestone and Petito. “We have seen changes to passport issuance for transgender US citizens as well as the threat of travel bans and further disruption and delay for immigration processes.”