Podcast: Manufacturers must prepare for increased ICE enforcement
Key Highlights
- Manufacturers must proactively track employees’ immigration status to avoid compliance issues.
- Increased audits make self-audits and I-9 reviews essential for workforce readiness.
- E-Verify alerts are helpful but do not guarantee protection from enforcement actions.
- Staffing shortages may occur due to stricter enforcement of immigration laws.
High-profile raids of manufacturing facilities by federal immigration agents are likely just beginning, labor and immigration attorney Jorge Lopez said. Increased federal funding for Immigration Customs Enforcement (ICE) agents still hasn't hit the agency and won't have a measurable impact on staffing there for months.
So, expect site visits and raids to increase in Q4 of this year and especially in the first half of 2026, Lopez says. He also offers advice on how to prepare your paperwork for federal investigations, what companies are (and are not) obligated to provide and how to limit legal exposure.
Speakers:
Below is an excerpt from the podcast:
LP: Can you tell us a little bit about the type of immigration work that you do?
JL: Sure. I basically exclusively represent management. I'm a corporate immigration attorney dealing with all sorts of issues for companies—HR issues, policies, visas, compliance work. I do a lot of compliance work.
LP: Our audience is a lot of manufacturing leaders and executives. And I'm wondering, what recent changes in immigration policy and law should manufacturing executives and employers be aware of?
JL: That's a good question. I mean, do you have a couple of hours? Because really it is something that’s on the mind of many folks, particularly in the manufacturing field. In that industry, I think we did a survey, and about 83% of all manufacturing respondents were concerned about immigration having an actual effect on their processes. And I think if there's one area where it's going to be focused, it’s really compliance work—whether or not the workforce may be interrupted and continue to be lawfully employed.
The big issue right now for most employers across the board, including manufacturing, is not just whether somebody is properly documented, but whether or not they will retain that proper documentation to continue being employed. That creates all sorts of issues for clients and companies.
LP: When you say retain, what do you mean? What are the issues around retaining their immigration status that have come up?
JL: What's going on right now is that there has been an aggressive effort by the administration to reevaluate many programs where individuals had lawful status to be in the United States. Whether it's the parole program for Haitians, Cubans, Nicaraguans, Venezuelans, or whether it's Venezuelan TPS, Nepalese TPS, or Honduran TPS, those scenarios are situations where folks have had lawful status for a number of years and now, unfortunately, as a result of recent changes in administration policy, they have lost that authorization. That means employers need to let go of that workforce.
LP: Are there any other visa concerns in addition to TPS, would you say?
JL: I think the visa concerns deal with the part of the workforce that may be visa-dependent—meaning there are certain employment-authorized visa statuses that allow you to work based on sponsorship by a company. In manufacturing, we usually see that in the engineering and quality control areas. In those scenarios where there is sponsorship, there may be more restrictive review of those applications, which could create problems for employers in that area.
LP: Are you seeing an increase in audits? And what can manufacturers do to prepare for that possibility?
JL: We have. You know, when the Trump administration first took effect in January of this year, there was a lot of talk and concern about raids. And the concept of raids—I no longer use the word raid, I use the word site visits, okay? Because really it reflects better what's going on.
And site visits basically could be one of two things. It could be an I-9 audit, which is, I think, the easy pickings and the easy way of doing enforcement activity, because it doesn't cost the government a lot of money. An I-9 raid really involves enforcement, reviews, investigations, getting a warrant issued by a federal judge. And those take time and money and effort.
An audit, on the other hand, is you come in, you present yourselves with a three-day notice. You come back, and depending on whether you come back in three days or a little bit longer—depending on what's been negotiated with the special agent in charge of the investigation—you then deal with production of information.
So we are seeing an increase in audits. I think one of the key things going on is that the $165 billion issued to DHS—which is one of the more heavily funded agencies now in the federal government—about a little over $150 billion is going to be exclusively related to immigration enforcement. About $30 billion is immigration enforcement, and $45 billion is going to be for detention facilities.
LP: So you're expecting an increase in audits. Are you seeing that already?
JL: We are seeing that already. We started seeing it within the first three months, not in the huge volumes of 12,000 to 15,000 in the pre-COVID years of the Trump administration, which obviously got truncated by COVID, unfortunately. But from a practical perspective, what we see right now is that we’re going to see more. That money—those $30 billion in enforcement activity—is going to be spent. Among the spending approvals were 10,000 new ICE agents to be able to deal with ICE audits and ICE raids. So yes, we are expecting that.
Right now, we have a bit of a lull because the budget just got approved. Funding is getting allocated. I think that by the end of the third quarter, if not the first part of the fourth quarter of this year, we're going to start seeing more activity.
LP: Do you usually hear from employers—like, do they call you when they've been told they're going to be audited, or are they planning far ahead for these audits? And I guess I'd like to know either way what's involved: what's involved to be prepared ahead of time, and what's involved if you have these three days to get ready?
JL: The most productive mechanism that I can advise companies to consider is to do a self-audit. You might want to consider that self-audit through outside counsel to protect the privilege, or internal counsel if you have internal counsel that you work with, so that at least you can argue you can protect the privilege of the information you're retrieving.
But you want to basically go through the mechanism of an internal audit in advance, because I get multiple calls. I get: “I want to do something on my own,” rather than scramble because I’ve now got an ICE audit and I’ve got to respond to ICE.
So from that practical perspective, we do expect that consideration is where folks now start looking at basic concepts like, “By the way, where are my I-9s?” You know, it sounds silly, but you’d be shocked at how many people thought they knew where they were, but when they went to look for them, they realized they weren’t where they thought. And when you’re dealing with a three-day audit review, that becomes a big deal.
So that’s why being proactive—doing simple things like that, doing the audit review, and remediating when you can—is extremely helpful.
LP: How often should employers be reviewing their employees' immigration status?
JL: That's a good question. I've always opined that it might be a good idea to do it on an annual basis. But I'm not saying do your entire workforce annually—do sort of systemic spot audits, a certain small percentage. And then if you find there are some error rates occurring, maybe expand that review. At least that gets you to show, one, due diligence. Two, capture any errors that have occurred. And three, it actually works well from a remediation perspective. Because if you do get an ICE audit by the government, they will consider it a positive that you’ve tried to do the best you can. It’s an ameliorating effect.
LP: What about E-Verify—if you run an employee's immigration information through that database, are you good?
JL: E-Verify is not a safe harbor provision. So it doesn’t mean that, hey, you’re an E-Verify employer, you get a pass and you’re not going to get negatively affected. But E-Verify does now capture alerts that are being updated by the government.
Basically, if somebody’s immigration status has been revoked—meaning their employment-authorized status—those alerts would appear in the E-Verify system. That then creates a burden on an E-Verify employer to make sure they check the system on a systemic basis, to be able to react and address those issues. Because then you may have issues of constructive notice, which are legal concepts—basically, you should have known better and addressed the issue on a timely basis.
LP: Can you explain a little bit about the different types of work visas and what the differences are?
JL: Well, that's a big question, because that’s like saying, “I want to win a million dollars, how do I do that?” But there are certain visa categories. There are what are called non-immigrant visas, which are your short-term, temporary visas that allow you to work and live in the United States pursuant to sponsorship by a company. And then there are immigrant visas, which is basically green card processing, where a company can sponsor somebody by testing the market to determine if there are qualified U.S. workers willing and capable of doing the job. If they can, then you can’t sponsor a foreign worker.
The most common short-term visa category we see is the H visa—for professional workers, IT workers, professionals in the sciences, business, etc. Any position that requires a degree as a minimum entry-level requirement would fall under the H visa. Then there are categories such as O for extraordinary ability, L for intra-company transfers, and E for companies formed under treaties with the United States. So there’s a multitude of visa categories and a lot of options, but it’s very specific to the individual.
LP: Are you seeing a lot of professionals coming in on these visitor visas, these temporary visas, and then, you know, is that an issue?
JL: The majority of workers are basically sponsored because they already are here working for another employer and are now candidates for new employment with a transition application to a new company. Or they may be abroad, living and working, and have responded to advertisements and ended up being selected among the candidates for employment.
There are folks that may come in on a temporary basis, but that’s not really as common. Those are just individuals coming in for business meetings or conferences or things along those lines that are more in line with not working. They really are just innocuous, inconsequential business-type meetings. Like if I go to Europe and meet with a client for two days, that’s about what that would be.
LP: What do you see in the past six months as the biggest concern or issue that employers are coming to talk to you about right now?
JL: The biggest concern is really the effect that the enforcement activity has had on the workforce. You know, I’ve got immediate needs. I’m a cooperative—I mean, my clients all cooperate with the federal system. They don’t hire illegal workers intentionally. They’re trying to do the right thing.
But they’re saying, “Well, they’re enforcing the immigration laws, that’s fine, the government has the right to do that. But the problem is I’m not given a mechanism to basically be able to fill my workforce needs.” And that’s creating a problem. So there’s a real concern, particularly among small to mid-sized employers, about how they are going to address the staffing shortage as a result of the increased enforcement activity.
LP: So you’ve seen clients have to let people go because—?
JL: Oh, absolutely. They have, unfortunately, no choice. If somebody is determined to be undocumented, or somebody is determined to have lost their lawful status and they are no longer employment-authorized, there is no choice for an employer but to let go of that talent.
LP: And are more of the technicalities being enforced now?
JL: They are very strict in making sure that the i’s are dotted and the t’s are crossed, to ensure everybody’s complying with what the law requires. I am seeing an environment of greater scrutiny of applications for individuals applying for visas that support their status, or greater scrutiny of an individual’s status after they’ve been approved.
I’ve seen an increase right now. The government’s announcing a denaturalization process where, even if you’re a U.S. citizen, you could lose your citizenship status if there was a misrepresentation made at the time of original application. So a lot of that vetting is going on right now.
LP: Is there any kind of quick fix—or maybe not a quick fix, but a longer fix—that could remedy some of these problems employers are having?
JL: Now you’re asking me to get on my immigration attorney bandwagon. I’ll give you my personal view on that. I’ve been practicing for 40 years. I’m board-certified by the state of Florida in immigration and nationality law. So I’ve been doing this exclusively for a very long time, and this has been my primary area.
Ever since I started, the one thing that politicians—I'm not making a political statement, I’m just making a practical statement on behalf of corporate companies—the one thing they haven’t focused on is: What is the comprehensive immigration reform that should be going on? Let’s do enforcement. Let’s do what the law requires us to do. But also let’s create mechanisms that allow U.S. employers to legally bring in talent when that talent cannot be found in the United States. That, I think, is a combination of both. That’s what really needs to occur. But I don’t think that, currently, there’s a view that’s the direction the administration prefers to go.
LP: I just wanted to touch on those site visits a little bit. What can manufacturers do to be prepared, whether it’s a planned visit or if immigration enforcement ends up at their door?
JL: One of the things you would positively and proactively want to do is an I-9 audit. That lets you make sure you’ve captured everybody. You’re supposed to review the I-9s and make sure you have a tickler system so that if somebody’s lawful status is expiring, you vet and review it before it expires so they can continue to be employed.
So that spot audit lets you figure out and make sure you didn’t miss anybody, make sure your system was as viable as you thought it was. It lets you make those fixes. And if the talent can stay because they have lawful status, you can resolve that. If the talent, for some reason, can’t—because they can’t overcome it—then you have to let them go.
But you’d rather deal with that on your own terms, meaning you let them go and then try to find a replacement, rather than scrambling when the government tells you that you have to let them go immediately. When the government’s looking at it, it may be more a scenario of them picking the person up, whether it’s at the worksite or at home. Compared to that, in your case, you would tell them, “Yeah, I can’t employ you anymore,” and then find the talent elsewhere.
LP: With the ICE or immigration enforcement visit itself, what—what if they want to come in and inspect the entire plant? Like, are there areas that they can't go if you have proprietary areas?
JL: There are two types of audits or site visits that can occur. One is a site visit where administrative warrants are issued, basically an I-9 inspection. Those are areas where, if an administrative warrant is issued—signed off by a supervisory agent, not a federal judge—you would need to give consent for them to enter all private areas of the company. So let’s say you have a reception area that would be public, but if there’s a warehouse in the back where manufacturing is going on, that is private. They would need consent to go in there.
A common question I get is: What if ICE comes and they’re looking for Joe Blow and want to basically pick him up or talk to him? My advice is always to get those individuals, remove them from the work site if they’re on that shift, and put them into a secure site. Give them access to that secure site with the ICE agents, but do not walk the ICE agents through the backroom operations that are private. Because then you’re giving them consent to talk to anybody or view any information they retrieve by going through the premises. If it’s a judicial warrant, they do not need consent—they can enter public and private areas depending on what the warrant says.
LP: And should you be saying anything to your employees?
JL: I’m very wary of giving proactive advice from an employer, because that might allude to thinking an employee has a questionable status. That could create a concept of actual or constructive knowledge of them being unlawfully in the country. If you want to give employees access to counsel on their own—where they can handle issues like real estate closings, mortgages, wills, or immigration—then you can let them find that advice independently. But I don’t think it’s a good idea for a company to provide proactive advice, because it could create exposure for the company.
LP: I guess I mean not tipping them off.
JL: Exactly. We definitely don’t do that.
LP: I don’t mean that. I mean like there are people arriving on site who are armed. Is there any sort of protocol?
JL: Well, there is a protocol. Basically, the first protocol is knowing who to contact when reception is approached with a warrant or subpoena to speak with a specific individual. The first thing is to have a protocol so that the reception area staff know who to escalate to. I don’t think the front desk should be making decisions about who has access to the premises. That should be upper-level management, so there’s a control mechanism in place for how access is granted.
LP: Is there anything else you wanted to add or just remind manufacturing employers regarding immigration?
JL: I think immigration issues are at the forefront of most manufacturing employers’ minds right now. It’s important to do line-by-line reviews and create a mechanism where you can control your own destiny, rather than letting it be controlled by a random government audit. That way, you can manage how to deal with staffing shortages that may or may not occur.
About the Author
Laura Putre
Senior Editor Laura Putre manages IW contributors and covers leadership as it applies to executive best practices, corporate culture, corporate responsibility, growth strategies, managing and training talent, and strategic planning. A former newspaper journalist, Laura has written for Slate, The Root, the Chicago Tribune, the Guardian and many other publications.