This year, with the second Trump Administration well underway, the contours of different legal areas have undergone dramatic shifts, none more prominent than in immigration. There have been significant changes in the first half of this year, with no signs of abating. Just last month, the Supreme Court placed restrictions on judges’ ability to issue nationwide injunctions, potentially allowing the executive order limiting birthright citizenship to take effect in some states. That decision, and the flurry of immigration-related executive orders, illustrates why it is more important than ever for employers to not only be aware of the changing landscape but also know how to respond when immigration enforcement actions arrive at their doorstep. This update covers the areas employers should focus on to ensure compliance with the nation’s ever-changing immigration policies.
- Expecting and preparing for Immigration Enforcement Actions
The second Trump Administration has placed an enhanced focus on immigration enforcement, including targeted enforcement operations, judicial warrant enforcement actions, I-9 audits, and compliance reviews and audits of applications for immigration benefits. Each of these actions can vary in scope and complexity and are enforced by various agencies. Nevertheless, employers can prepare to respond to all enforcement actions by implementing the following measures:
Creating a team. Employers should have a dedicated team within their organization that is responsible for responding to immigration enforcement actions. The team should be familiar with the various issues that these actions present and should be able to work with counsel to identify a particular action when it occurs. The team should understand the different agencies that may be involved, such as ICE Enforcement and Removal Operations and ICE Homeland Security Investigations. The team should also be familiar with the documentation that distinguishes one type of action from another, such as an administrative arrest warrant, judicial warrant, and Notice of Inspection.
Preparing a written response plan. With the assistance of counsel, employers should have a plan in writing that outlines an appropriate response when confronted with each type of enforcement action. The response plan should identify employees of the organization who are most likely to make initial contact with immigration authorities and provide those employees with precise guidance on several points, including: the limitation of their authority to consent to searches; who in the organization is a member of the team responsible for responding to immigration enforcement actions; how to collect documentation and request identification from law enforcement; where to send documentation within the organization; and where to direct immigration authorities during an investigation.
Practicing. Once a response plan is in place, ensure that the plan is disseminated throughout the organization and that employees with responsibilities understand their roles and how to perform them. A response plan is only as good as the organization’s ability to implement it correctly. .
Staying Updated. As enforcement priorities and practices change, it is important to work with counsel to adjust your response plans accordingly.
2. Impact of ending parole programs and Temporary Protected Status.
In addition to an enhanced focus on enforcement actions, the second Trump Administration has enacted policies to terminate categorical parole programs and Temporary Protected Status (TPS) programs. These decisions have resulted in monumental and swift changes in the status of noncitizens, including their ability to work legally in the United States.
Parole is a form of humanitarian relief for noncitizens that provides temporary legal status, allowing individuals to remain in the country and apply for work authorization. However, it does not offer a pathway to citizenship.
Categorical parole programs, in effect, are blanket programs that provide temporary legal status to noncitizens from designated countries. Last month, the Supreme Court upheld the Trump Administration’s decision to terminate the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) program, affecting over 500,000 noncitizens from these countries who, under the program, were allowed to legally remain in the United States. Additionally, a parole program for Ukrainians has been suspended, although not outright terminated.
In addition to terminating categorical parole programs, the Trump Administration has moved to terminate the Temporary Protected Status (TPS) for many noncitizens, including Venezuelans. Akin to parole programs, termination of TPS status effectively terminates work authorization for affected noncitizens.
Employers must not only be cognizant of the changing policies affecting parole and TPS programs, but also take proactive steps to ensure any potentially affected employees are still authorized to work. To do so, employers should:
- Review I-9 forms and supporting documentation for all employees.
- Check expiration dates on Employment Authorization Documents.
- Identify employees who may have parole-based or TPS-based work authorization.
- Monitor official announcements from USCIS or DHS regarding termination of programs.
- Check employees’ status in E-Verify, if applicable, by running a report. Do not wait for notifications—actively monitor employees’ status.
- Contact outside counsel to determine appropriate steps if employees are subject to early termination.
As with enforcement actions, employers must stay current on changes to programs that provide temporary legal status, ensuring all employees remain authorized to work.
Barley Snyder will continue to monitor developments affecting the immigration system and provide updates as new information becomes available. If you have questions regarding any of these potential changes or immigration-related matters in general, please contact attorney Andrew Mahon or any member of Barley Snyder’s Immigration Practice Group.
Summer Associate Michael Votano assisted in the drafting of this client alert. To learn more about our summer associate program, click here.
