Under the Trump Administration, there were many headlines about ICE raiding workplaces and arresting undocumented workers. According to some, Trump’s workplace raid policy was established as a punitive measure against these undocumented workers. As it often happens when there is a new administration, President Biden and his team have changed policies. As a result, Homeland Security Secretary Alejandro Mayorkas recently issued a memorandum addressing the administration’s new policy. The subject line of the memo reads: Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual. From the subject line, the administration is clearly focused more on exploitative employers rather than unauthorized workers.
Why the Change?
Secretary Mayorkas’ memo explains the rationale for this shift in policy. Here a few key points taken from his memo:
- Focus on unscrupulous employers who exploit the vulnerability of unauthorized workers. Examples of exploitation include the payment of substandard wages, unsafe working conditions, and facilitating human trafficking and child exploitation.
- The payment of substandard wages creates an unfair labor market. Also, this unfairly drives down the employers’ costs and creates a disadvantage for competitors who abide by the law.
The Goals of the Policy
Overall, the Biden Administration wants to use immigration enforcement to force employers to comply with existing U.S. laws. Accordingly, they want to achieve the following:
- Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents;
- Increase the willingness of workers to report violations of law by exploitative employers and cooperate in employment and labor standards investigations; and,
- Broaden and deepen mechanisms for coordination between the Department of Homeland Security and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.
The Impact to Employers
First, this policy calls for end to mass ICE raids at places of employment. This is indeed good news for businesses that follow the law. Also, the new policy calls for prosecutorial discretion. For example, undocumented workers avoid personal prosecution as a victim or witness of workplace exploitation. In the past, undocumented workers feared coming forward because of their immigration status.
As an immigration lawyer, because the Biden policy is now holding employers accountable for hiring undocumented employees and then treating them poorly, I suspect there will be an increase in I-9 audits. Therefore, it is essential to have your company’s I-9 documents in order. I am here to help you and answer your immigration law questions.