But What about President-elect Trump’s Immigration Policies?

In his first term, President Trump changed policies at the U.S.-Mexico border, reduced the number of refugees admitted to the U.S., and added additional requirements to the legal immigration system.  He also changed enforcement priorities, seeking to increase Immigration and Customs Enforcement (ICE) enforcement and deportations and to end the Deferred Action for Childhood Arrivals (DACA or Dreamers) Program.  He also sought to end the Temporary Protective Status (TPS) for certain countries.  

But when we look at the actual results of the first Trump Administration, in his first term he only deported about 325,000 persons.  While President Biden only deported about 140,000, former President Obama deported some 1.2 million across his two terms.  But no effort was made by Presidents Obama or Biden to round up people living in the U.S. en masse.  

Trump’s immigration advisors and Trump himself have said they plan to primarily target immigrants with criminal histories and those that have already been ordered deported by a court.  There are other possible targets.  

Some 860,000 immigrants live in the U.S. through TPS status, which is for people whose countries are deemed too dangerous.  Trump has vowed not to renew those protections for some or all of the 16 or 17 countries, including Venezuela and Haiti.  The first set of TPS protections is due to expire in March of 2025, that covers 230,000 migrants from El Salvador.  Another group that Trump has suggested he would deport are those granted Humanitarian Parole, and there may be up to one million persons currently in one of the Parole Programs.  

It will be hard to have the largest “mass deportation” that has been repeatedly mentioned in the press.  Mass deportation requires assistance from state and local law enforcement agencies that may or may not be available.  Currently, some 21 states participate in the Section 287(g) Program, which allows state and local law enforcement officials to detain immigrants who will be picked up by ICE.  It would be difficult to have massive deportations, as currently the U.S. can only hold about 40,000 in immigration detention on any given day and coordinating a large effort among various state and federal agencies and local law enforcement would be difficult if not impossible.  There have been suggestions that the President could declare a national emergency and use local law enforcement, the military, the FBI and other federal agencies, but there are legal and practical limitations to such efforts.

What is possible is more localized enforcement efforts.  The new “Immigration Czar,” Tom Homan, formerly ICE Director in the first Trump Administration, suggested that he might have ICE agents go around knocking on apartment and house doors in various areas, particularly to apprehend those who had serious criminal records or previously had been ordered to leave the U.S.  Mr. Homan conducted such efforts in localized areas during the first Trump Administration, an example being the Los Angeles area.  Mr. Homan has said repeatedly that ICE would not ignore someone they encounter who does not have the government’s permission to be in the U.S., and at least in those cases would likely arrest immigrants whose only offense was being in the country illegally.

Thus, although illegal immigration is at the top of the list of priorities of the new administration, the type of mass deportation suggested in the press would likely actually lead instead to more of a “showy effort.”  

What we do know is that the new administration will likely reinstitute workplace “raids,” and increase the type of audits of I-9s known as “silent raids.”  In October 2021, the Biden Administration announced it would no longer do worksite raids.  The last reported raid was in July of 2020, but they are likely to be reinstituted in the new administration.  In such raids, ICE might surround a business premises to prevent anyone from leaving, and pursuant to a warrant, arrest and detain unauthorized workers at the site.  These raids are highly disruptive to a business and create adverse publicity.  

Regarding audits or “silent raids,” ICE provides a notice of inspection or subpoena for a company’s I-9 Forms to be provided within 72 hours.  After the government reviews the forms, some errors in the forms may be corrected by the employer within a 10-day deadline for non-substantive mistakes, while substantive errors usually result in penalties.  Most significantly, an employer may be required to terminate numbers of employees who are determined to be unauthorized.  An employer can be fined up to $27,894 per unauthorized worker if an employer is deemed to have knowledge of unauthorized status, and in some cases even criminal actions can be brought.  The paperwork violations range from $281 to $2,789 for each paperwork violation.  

Employers have learned that the best way to avoid enforcement actions as well as a disruption to the business is by attempting to maintain a legal workforce.  At the same time, employers must remember that immigration law protects legally authorized workers from discrimination.  

This firm is available to assist employers in developing compliance programs with proactive steps to avoid disruptions to the business and enforcement actions.  Some of these programs will be discussed in upcoming newsletters.

This article is part of our January 2025 Newsletter. 

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