DISCLAIMER: This post contains general information about employment and immigration. It is not legal advice. If you are uncertain about your current obligations, we strongly recommend you schedule a consultation with an employment immigration attorney.
As an employment attorney and global workplace mediator, I’ve seen firsthand how complex and emotionally charged the topic of immigration can be in the workplace. It’s a space where legal requirements, ethical considerations, and human realities collide. My goal is to help businesses and employees find clarity and resolution, even in the most difficult situations. Drawn from a recent webinar in the “DEI for REAL” series I am doing with Spectra Diversity, the following insights offer guidance on how to approach this sensitive issue with both legal grounding and human compassion.
The Human Side of the Law
When we talk about undocumented workers, it’s essential to remember we’re discussing people. They are individuals who contribute to our nation’s workforce, often in sectors that rely heavily on their labor, such as agriculture and construction. Many face difficult conditions, including unfair wages, unsafe work environments, and a constant fear of retaliation or deportation. This fear can be used as a tool for exploitation by unscrupulous employers, creating a cycle of vulnerability and injustice.
A core challenge is balancing the enforcement of immigration laws with the protection of human rights. Third Ear Conflict Resolution is built on the belief that a partnership between employers and employees can be mutually beneficial. Exploitation, however, shatters this partnership. It is a legal and ethical violation that not only harms the individual worker but also undermines fair competition for businesses that comply with the law. Businesses and families who employ workers who lack authorization to work in the United States are a big part of the immigration problems we have.
The Role of Sanctuary Cities
The concept of a sanctuary city, such as New York City where I practice, is often misunderstood. These policies are not designed to shield people from the law. Instead, they aim to foster trust between immigrant communities and local law enforcement. By limiting cooperation with federal immigration agencies like ICE, these cities want to ensure that people feel safe reporting crimes, accessing healthcare (notably, not free healthcare), and participating in community life without fear that doing so will automatically lead to their deportation–without due process of law.
The debate surrounding these policies highlights a fundamental divide. Critics argue they are a violation of federal law and encourage undocumented immigration. Supporters, on the other hand, point to evidence that sanctuary cities may have lower crime rates and higher economic vitality, including greater labor force participation and higher household incomes. They also emphasize the economic contributions of immigrants, including billions in taxes and a readiness to fill labor gaps.
Again, businesses are the overlooked contributors. We have to hold them accountable, too.
Legal Overview of Employer Responsibilities
United States immigration law places significant responsibilities on all employers to verify the identity and employment eligibility of every individual hired in the United States, including citizens and non-citizens. This is primarily mandated by the Immigration Reform and Control Act of 1986 (IRCA).
Form I-9 Authorization
The cornerstone of compliance is Form I-9, the Employment Eligibility Verification document. Employers must properly complete and retain this form for every new hire. They must also re-verify authorizations that have expiration dates.
Re-verification of Expiring Authorizations
Employers must note which employees have work authorizations that expire. If an employee’s employment authorization document (EAD) has an expiration date, the employer is generally required to track that date and re-verify the employee’s work authorization on Form I-9, Supplement B, before the original document expires.
Using E-Verify
E-Verify is a free, internet-based system that electronically confirms the employment eligibility of newly hired employees by comparing I-9 information with government records. It is voluntary for most US employers, but it is mandatory for:
- Employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause.
- Employers with employees in states with legislation that requires E-Verify participation, for example, as a condition of business licensing (e.g., North Carolina and Florida for employers over a certain size).
- Employers required to use it pursuant to a court order.
Other Employer Responsibilities
In addition to Form I-9 compliance, employers have other key responsibilities:
- Non-Discrimination. Employers must not discriminate against individuals based on national origin, citizenship, or immigration status during the hiring process. Employers may ask about work authorization but not immigration or citizenship details.
- Timely and Consistent Processing (which can also be interpreted as discrimination). Employers must apply the I-9 and E-Verify processes consistently to all new hires and adhere to strict completion deadlines.
Employer Rights During ICE Activity
If Immigration and Customs Enforcement (ICE) arrives at a worksite, employers have specific rights and obligations:
- Request Documentation. Employers should ask the ICE agents to present their identification and a valid judicial warrant or Notice of Inspection (NOI).
- Contact Legal Counsel. The company representative should immediately alert and contact legal counsel, informing agents that this is company policy.
- Access to Premises. ICE agents may enter public areas of the workplace without consent. They must have a valid judicial search warrant (signed by a judge) to enter non-public areas. Employers should not consent to a search of private areas without a judicial warrant.
- I-9 Audits. For an I-9 audit, ICE typically serves an NOI, and the employer has at least three business days to produce the forms.
- Employee Rights. Employees have the right to remain silent and to ask for an attorney, and the employer may inform employees of these rights without directing them not to cooperate. The employer should not help agents sort people by immigration status.
- Monitoring the Search. A company representative should accompany the agents to monitor their activity and ensure they do not exceed the scope of any warrant.
Navigating the Shifting Legal Landscape
The laws governing immigration are in constant flux, with significant rulings and policy changes affecting the rights of both immigrants and employers. For example, recent court decisions have granted ICE more authority to conduct stops based on factors like race and language. (I am still trying to reconcile this with Title VII of the Civil Rights Act of 1964.) Other policy changes include increased budgets for border control, prolonged delays in green card processing, and the revocation of Temporary Protected Status (TPS) for some nationalities (another Title VII concern).
This ever-changing environment can be frightening, especially for individuals and families whose lives are directly impacted. It also creates a minefield for employers trying to stay compliant. This is precisely why education is so vital. My recommendations for my clients and anyone seeking to navigate these issues is to be proactive and informed.
- For Employers: Seek counsel from an employment immigration attorney to ensure legal compliance and avoid the risks associated with employing undocumented workers.
- For Employees: Know your rights. Organizations like the ACLU and the Immigrant Defense Project offer resources and guidance. If you are an immigrant working without proper authorization, consult with an immigration attorney. If you are aware of your employer exploiting undocumented workers, you may have legal recourse as a whistleblower and should consult an attorney experienced in those cases.
In our work with Spectra Diversity, we apply the “DEI for REAL” framework: Reassure, Educate, Activate, and Lead effective, collaborative action that balances the competing interests of affected parties. It is about moving beyond dialogue to tangible action. This means taking steps to understand the law, advocating for fair policies, and supporting resources that help protect vulnerable workers. By leading with empathy and expertise, we can turn a complex and divisive issue into an opportunity to build more just and equitable workplaces for all.
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