Volume 1 | Issue 4

The Department of Homeland Security’s New Enforcement Priorities for 2022

The Department of Homeland Security (“DHS”) has formalized its enforcement priorities for the new year.  The DHS has announced it will begin implementation of the Guidelines for the Enforcement of Civil Immigration Law signed on September 30, 2021 by Secretary of Homeland Security Alejandro N. Mayorkas.  Additionally, the President’s Administration has announced it will end the practice of mass worksite immigration raids.  Instead of worksite raids targeting employees, the DHS will focus on employers, using their auditing authority to minimize employment of unauthorized workers and to prevent mistreatment of workers.

What does this shift in priorities mean for employers?

The DHS’s shift to prioritizing audits as an enforcement mechanism means employers will be under increased scrutiny over their hiring, onboarding and employment of noncitizen workers.  Pursuant to federal regulations, the DHS may audit an employer’s I-9 Forms at any time, for any reason.  Thus, employers must ensure their I-9 Forms are completed for all employees and that they are completed timely and correctly to minimize liability in the event of an audit.
Additionally, the government may perform worksite visits in connection with E-3, H-1B and L-1 employees to ensure compliance with paperwork retention requirements and terms of employment obligations.  Accordingly, employers should review their obligations to noncitizen workers and ensure that all required paperwork has been completed and is being properly retained.

How are these priorities different from previous years?

In recent years, the DHS’s focus was on employees, using worksite raids and removal actions to attempt to limit unauthorized employment.  Additionally, COVID-related delays created a backlog of I-9 audit reviews.  This backlog is now clearing, leading to an increased capacity for performing new audits.  The shift in priorities from employee-focused to employer-focused may also portend other changes related to verification of employment authorization.  Currently, the DHS is considering making permanent the Form I-9 flexibility rules that were put in place in March 2020 allowing remote verification of documents.  Further, the Biden Administration has long considered making E-Verify mandatory for all employers and may be looking to implement this rule in the near future.

What can employers do to minimize their liability?

In light of the DHS’s new enforcement priorities, employers should review their Form I-9 practices and perform audits of current I-9 Forms.  Reviewing and correcting errors before an audit occurs can result in a reduction of liability.  Further, employers of E-3, H-1B and L-1 visa holders should ensure that the required paperwork is completed and retained in the event of an audit and review their obligations regarding terms and conditions of employment to ensure compliance.  Finally, employers should create and implement a plan for responding to government officials that arrive to perform an audit, noting who should be contacted and the necessary information to gather from the government official.