Worksite Enforcement and TPS and Parole Status Update

The webinar covers how to deal with a worksite enforcement action and various types of immigration enforcement activities. The webinar also provides an update on the work authorization of those who have TPS or Parole status. The speaker is James L. Hughes.

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From Webinar: Key Employer Action Items

James L. Hughes (00:01):
Webinar on work enforcement and t ps and status. My name is Jim Hugs work here, Wimber Homeland Security has resumed expanded work enforcement operations and they have reversed the 2021 policy that ended Mass Road. So now they're serving thousands of notices of inspection and subpoenas to employers demanding that they have the opportunity to review I nine eligibility documents. They're also issuing notices of suspect documents for employees who lack proper work authorization. They're imposing fines for online paperwork errors with penalties of up to 2,800 per violation. They are detaining employees at work sites during inspections sometimes pursuant to sur suppress visits or strategic positioning to prevent workers from entering or leaving the workplace. And then for those employers who have federal contracts, they're threatening to proceedings. Employers need to prepare for that ice. You have to make sure that you have an I nine for each employee.

James L. Hughes (01:19):
The I nine should be fully and properly complete. The higher date on the I nine needs to match payroll records and the higher date on the e the documents recorded on the I nine should match the documents submitted to E-Verify. For example, if you have a Department of Driver Services issued, id that's the document that should be reflected on e. If you have a document that's issued by another state agency, for example, a prison, then that is the document that should be reflected on E. Another issue is to make sure that you have properly addressed all status change reports in the e systems. Over the last couple of years the government has been notifying employers of the expiration of, or termination of work authorization of various employees, primarily people on parole, but also people whose TPS status is terminated or it's expired. When there is an audit, you need to be prepared to provide thes the payroll records and other requested documents within three days. It's fairly common to receive an extension, but given the tougher enforcement stance that the Trump administration is following, you should be prepared to provides within three days. Now, this what a of inspection looks.

James L. Hughes (02:59):
It explains the legal authority that the government has for reviewing your I nine records. And it establishes the date and time for production of those records, and you'll have the opportunity to discuss legal requirements with the inspector. There is also a subpoena form this document normally accompanies in notice of inspection, and they're asking you to produce certain records, which would be on an attachment. There's also instructions about when and where to produce the documents. Usually what happens is the government will pick up the documents from your office, or on occasion, they may ask you to produce the documents at another location. After reviewing the I nine records, there may be a notice of technical and procedural failures. This comes after the notice of inspection and after the government has reviewed the I nines for compliance.

James L. Hughes (04:03):
If there are technical and procedural failures, we'll get this notice and those technical and procedural failures will be identified. You'll have 10 days to correct those technical and procedural errors. Failures not corrected within that timeline are treated as substantive violations and can no longer be correct. It's worthwhile stop at this point and let you know that the government has decided that most, any error on an I nine form is a substantive error. So you may not be receiving a notice of technical and procedural failures. I believe the government's position is not supported by the plain language of the statute, but that is the current enforcement environment. We've already had one employer who suffered through an inspection where the government was treating technical and procedural failures as substantive failures and did not give the employer the opportunity to correct those error.

James L. Hughes (05:10):
So it's already enforced. It's not something that will happen in the future. You need to make sure that your s are pristine. Sometimes if your s are pristine, you will get a notice of inspection results. Not always, but some it could reveal the absence of any errors and it would indicate that you did not employ any unauthorized non-citizens. Sometimes the government will issue a notice of inspection. Sometimes after they issue a notice of inspection, you will receive a notice of discrepancies. This will be a situation in which they've noticed a discrepancy in the identity of an employee or an employee's eligibility to work. And the government cannot make a determination based on the documents presented. The government will then give you an opportunity to provide additional documentation to verify the identity and work authorization of the employee. Typically, companies have 10 business days to respond to the government.

James L. Hughes (06:16):
After the government receives your additional information, the government will issue a notice of inspection results. And it could be that they determine the employee is authorized work or that the employee is not authorized. Sometimes you'll get a notice of suspect documents. And when that is issued, you have to go through the process of getting with your employees and determining whether they have any additional documents evidencing identity or work authorization. The notice of suspect documents will be issued when government determines that the identity or employment eligibility documents do not relate to the employee who presented the documents, or there is no record of issuance for valid employment in the United States. Then comes the notice of intent to find. This is a situation where they've issued the notice of inspection. They completed their inspection of the I nines. They determined whether there are failures or violation, and this is when the SUBSTATIVE violations are ultimately provided to the employer.

James L. Hughes (07:28):
When you receive a notice of intent to find you have the opportunity to appeal the notice of intent to find through an Administrative Hearing office procedure. It's called the, the Office of Chief Administrative Hearing Officer. If you decide to appeal, the case will be decided in OK hearing. You also have the opportunity to seek a settlement following a notice of intent to find. My normal practice is to go ahead and appeal the notice of intent to find, which allows you to time to try to settle if that is your decide. If you do not appeal or settle, the government will issue a final order to cease violations and pay the pot. There is no appeal when this final order is issued. So if you want to dispute the notice of intent to fine, you have to timely appeal and go through the Yo Caho hearing process.

James L. Hughes (08:37):
I'll say that it, the Yo Caho hearing process usually results in some fine reductions maybe even substantial fine reductions if the government is unwilling to settle. And most of the time, the government is willing to settle for substantial reductions because they know that some of the hearing officers will impose substantial reductions. So it's worthwhile to appeal and then try to settle to get the best deal you can without going hear because the government is taking the position that all violations are substantive violations. I think there is a legal basis to challenge the government's position. The administrative hearing officer may agree with the government, but then you would have the opportunity to appeal and receive a judicial review of your appeal from which point the legal arguments, I think would be given more away. Sometimes you might receive a warrant or arrest of an this is a sample.

James L. Hughes (09:47):
This is not issued of four. It's issued by an immigration officer. So for nearly you would not be subject to complying with such a, because it doesn't satisfy the Fourth Amendment process or search and seizure. Our normal recommendation is for the employer to comply with this sort of warrant to demonstrate cooperation with the government. Usually, if the government brings this sort of warrant is usually for one employee, maybe a couple of more, but it's, it usually doesn't substantially debilitate the workforce. So we typically recommend cooperation. In contrast, there is a search and seizure, and those types of warrants are issued by a court, in this case, a United States District Court. The court will give a specific time within which the warrant must be executed. It'll identify the documents that can be seized during the search.

James L. Hughes (11:06):
It will identify the people who can be seized during the search. When you receive this type of warrant, you should make sure that you send a copy to your attorney as quickly as possible for review. It would also be important for the person who is working with the government in cooperation with finding the people and documents sought by the search warrant to have a copy of it, to make sure that the government is abiding with the terms established, the judge, you'll most likely get a search and seizure warrant when there is an so what. Talk about how to prepare for an ice road. Immigration officers are permitted to enter any public areas of your workplace, but they must have a balanced search warrant or your consent to enter non-public areas. So, for example, a public area might be a lobbies, a public area might be your parking.

James L. Hughes (12:16):
A non-public area might be your production pool. So in order for the government to enter, they will either need a valid warrant signed by a judge, or they will need your consent to enter non-public areas. Typically, an agent will serve the search warrant on a receptionist or company representative and alert other agents to end. At this point, your receptionist should contact the person who will be responsible for or walking with the government during the search and keeping track of what the government is doing. Now, it's very important that the company indicate that it is accepting the warrant, but not consenting to the search. If you do not consent to the search, the search will proceed, but you can later challenge it if there are grounds to do so. You're not to in obstruct the agents in conducting the search, but merely state you that you do not consent to the search.

James L. Hughes (13:26):
This is sufficient to preserve your rights if there's later judicial action. Now, the government may demand that equipment be shut down and let no one leave the premises without permission. You may have your own reasons for needing the equipment to be shut down on an order loop. You also should recognize that the government may move employees into a contained area for questioning. It may separate employees, for example, they may separate the Hispanic looking employees from the non-Hispanic looking. There may be some agents who question employees, while others will likely execute the search and seizure warrant for items listed in the warrant. Public areas vary with the business. Certainly restaurants where the general public enters the, the government can enter without a a search the government may need a search warrant to go back into the kitchen. So it depends on the type of business.

James L. Hughes (14:29):
What are public areas and what are private areas, and you may wanna designate with signs restricting access to private areas so that the government knows that they will need a warrant. And so that you can tell the government if they enter without a, that they cannot enter private. So for, do you have a warrant? They can't enter a private area without a warrant or your permission. Sometimes they'll try to use an administrator to enter a private area, but an administrative warrant does not allow agents to enter private areas without your permission. Administrative warrants are not from the court. They say something like Department of Homeland Security for Homeland Security Investigation. You can say if there's no judicial warrant, private property. Now if they do have a warrant to arrest a person that is issued by the Department of Homeland Security, we do recommend your cooperation.

James L. Hughes (15:35):
But we would recommend that you bring the employee to the public area so that the government can take that point. It's important to use private keep out signs or employee owned signs because those help the government know that they need a warrant to enter for your permission. It also helps your employees to know who can enter, who can so, or review private areas. Immigration agents can enter a private area only if they have a judicial warrant or your commission without a judicial warrant. Ice agents need your permission to enter private areas of your business. A judicial must be signed by judge and say, US District Court, or have a state court. If government agents try to enter a private area, you should say, this is a private area. You cannot enter without a judicial warrant signed by a judge. Do you have a judicial warrant?

James L. Hughes (16:38):
And in the event of a raid, they usually will, they will usually tell you that they have a judicial warrant, and you can ask for a copy and take the time to read it. After you've determined that it's a judicial warrant signed by a judge and that it's being served within the permitted time and that the search is within the scope of the warrant on, then you can move forward. But it's also important to say you, you can conduct your search, but we do not consent to your search. It's important to contact your attorney promptly and send a copy of the warrant to your attorney, and we'd like you to write down the name of the supervising agent and the name of the US attorney assigned to the case. If that information is on the warrant. And it should, you should have at least one company represented to follow each agent around the facility.

James L. Hughes (17:29):
The employee may take notes or videotape the officer. You should note any items seized and ask if copies can be made before they're taken. If the agent does not allow you to make copies, you can sometimes attain copies later. But I would strongly recommend that you have backup copies at all times so that the government does come in and then take your paper files or your computer files. You at least have backups on servers someplace where you can normal business. If the agents present a valid search warrant and wanna access to lock facilities, you should unlock them. It's still indicating that you're not consenting to the search and merely cooperating with their search. Depending on your business, you may need to make certain requests while the agents are present. For example, if they're seizing documents, you may say, I need a copy of that document, reasonable request for usually grant, you should not block or interfere with the agent's activities.

James L. Hughes (18:36):
And you can object to a search outside the scope of the warrant. In those situations, it, it would not be appropriate to promote a physical confrontation, but simply state your objection to it and make a note of you have the right to protect privilege documents. If an agent wishes to examine documents designated as attorney client privilege materials, inform them that privileged and request that attorney-client documents not be expected by the agent until you were able to speak with your attorney. If the agent sees those documents, it cannot prevent them from doing so. But you should try to record in your notes exactly what documents were taken by the agent and ask them for a list of what they took. Company representatives should not give any statements to federal agents or allow themselves to be interated before consulting with an attorney. You may inform employees that they may choose whether or not to talk with federal agents, but do not direct them to refuse to speak to agents when question.

James L. Hughes (19:41):
Now this is kind of a controversial recommendation, and some employers prefer not to speak to employees and give them any sort of instruction about whether they can or cannot speak to federal agents. And that's an appropriate course of action. You certainly protect yourself from obstruction charges if you do not provide the employees any sort of instruction on these issues. During a array, you do not hide employees or assist them in meeting the premises without permission. There may be occasions when someone has a medical issue or when people have to get home to pick up children from school. And that's what the government is usually cooperative but not always. So it there is a need for accommodations. Please talk with the government agents to obtain their consent. You do not provide false or misleading information or falsely denied presence of named employees, and you certainly did not shred documents or otherwise obscure documents.

James L. Hughes (20:51):
Do not forget about the health and welfare of your employees. The employees may require medication or medical intention, or they may need to pick up children from school. Certainly communicate these concerns to the federal agents, and they will. Sometimes it's important for the employer to have a written rapid response plan ahead of time that is communicated to management, to people who may have initial contact with the agents so that you know what to do when the situation arises. You can talk to other businesses and business associations and ask what they're doing to prepare. You can make a plan that it works for you. And then you may wanna practice just like a fire drill only. You may not wanna involve the whole workforce. You may just wanna involve management and some of the people who might be in contact with the agents initially.

James L. Hughes (21:53):
Now, I know that TPS and parole has been a big issue the last couple of years, and I will run through some of the current status people who have TPS and parole status. With respect to parole status, most people on parole will have C 11 indicating their status on their DAD for people mostly from Cuba, AD Nicaragua and Venezuela who were on parole status. That program was terminated in 2025. If you still had people in your workforce showing parole status then you should check your E-Verify status change reports to make sure that they're still employed lawfully. If they, if their work authorization has expired or been terminated, you may need to terminate their employment unless they have some other form of work authorization. You may have people from Ukraine in your workforce. Parole status is still active for those folks.

James L. Hughes (23:05):
Some people may employ dependents of military personnel and parole is still active for those people. There is ongoing litigation with respect to family, the Family reunification program, particularly as it relates to Cubans, Haitians, Nicaraguans, and Venezuelans. So we're now, we're just waiting on the outcome of that litigation. TPS steps. TPS status is usually noted as a 12 or C 19 on the Employment Authorization Doc. Again, the status change reports on E-Verify should be consulted to make sure that you're still in compliance. T ps for Afghanistanis was terminated in July of last year. TPS for people from Burma is tied up in litigation TPS for Cameroon terminated in August of last year. TPS for El Salvador is active through September 9th, 2026. The world author may have expired after March 9th, 2026. So you need to be sure that your TPS people from El Salvador still have current work authorization.

James L. Hughes (24:28):
TPS for Ethiopians and Haitians is in tied up an ongoing litigation, and there may be a Supreme Court decision or two coming out later this month that resolves some of the dispute. TPS for Lebanese is acted through November of 2026, but you need to determine whether they have work authorization TPS for Nepal and Nicaragua terminated in February of this year, TPS for Somalia and South Sudan, and is involved in ongoing litigation that some of which may be resolved by Supreme Court decisions that will come out later this month. TPS for Sudan is active through October of this year, but work authorization may have expired after April. So you need to confirm whether these people still have work authorization. TTS for Syrias involved in ongoing litigation that may be resolved over this month. TTS for Ukraine is active through October of this year.

James L. Hughes (25:37):
The work authorization may have expired after April, so you need to reverify their work authorization. Some people from Venezuela lost TPF status in November of 2025. Other people may have work authorization through October of this year. But that is expected to be the end date for those who qualify for work authorization through October. And TPS for Yemen is in ongoing litigation that may be resolved by Supreme Court decision later this month. That is our presentation for right now. I think that ends our presentation. I don't see anyone that wants to talk, so thank you for coming. If you have any questions subsequently, just feel free to email me at JLH. Thank you. Have a good weekend.