In two memos issued on Tuesday, the US Department of Homeland Security laid out new, stricter guidelines for enforcement of immigration policy, as the Trump administration’s effort to tighten America’s borders continues. According to the Associated Press, the new guidelines greatly expand the number of undocumented immigrants who could be targeted for deportation:
Any immigrant who is in the country illegally and is charged or convicted of any offense, or even suspected of a crime, will now be an enforcement priority, according to Homeland Security Department memos signed by Secretary John Kelly. That could include people arrested for shoplifting or minor offenses — or simply having crossed the border illegally. The Trump administration memos replace narrower guidance focusing on immigrants who have been convicted of serious crimes, are considered threats to national security or are recent border crossers. …
The memos do not change U.S. immigration laws, but take a far harder line toward enforcement. One example involves broader use of a program that fast-tracks deportations. It will now be applied to immigrants who cannot prove they have been in the United States longer than two years. It’s unclear how many immigrants that could include.
The guidelines also call for hiring 5,000 new Border Patrol agents and 10,000 Immigration and Customs Enforcement agents, expanding detention facilities for those awaiting deportation, and beginning construction on a wall along the US-Mexico border, but Congress will still have to provide funding for these projects to move forward. It is unclear how quickly the department would be able to hire so many new agents; Customs and Border Protection already has 2,000 vacancies, the AP notes, and most applicants for these jobs fail polygraph tests.
One notable policy not affected by the new guidelines is former president Barack Obama’s controversial Deferred Action for Childhood Arrivals (DACA) program, which protects some 750,000 undocumented immigrants who arrived in the US as children from deportation and gives them temporary permission to work. Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), a similar Obama program that protects undocumented immigrants whose children are US citizens or legal residents, also remains in place. Trump repeatedly criticized these initiatives and vowed to overturn them during last year’s campaign, but may have come around to a revised view of DACA beneficiaries.
Even though DACA escaped being revoked by these DHS memos, it is still possible that the administration will take action to end the program, for instance via a Justice Department-ordered legal review, which could result in the DHS being ordered to stop awarding or renewing work permits issued under the program.
Although the major priority changes outlined in the two memos are fairly straightforward, CNN observes, “the guidance is still unclear in many respects”:
It rescinds Obama executive orders besides the deferred action for children and parents of citizens — but notes that only “to the extent of the conflict” with new guidance, meaning some policies will remain in place. For example, a fact sheet released by the department says that rules keeping churches and schools as off-limits from enforcement actions remain in operation.
Asked about the confusion over which policies do and do not remain in place, an official said, “There are a lot of internal policies and memoranda and procedures that have to be worked out individually and analyzed by the legal departments. … That’s a very deliberate project that will be conducted.”
Tuesday’s memos mark the beginning of a policy change effort that will take time to implement and will likely be challenged in court, as other elements of Trump’s immigration agenda have been. So how will these changes affect employers?
It is, of course, illegal to employ undocumented immigrants, but with 11 million such individuals living in the US, many employers obviously do, whether or not they are aware of it. The memos come on the heels of a series of ICE raids on homes and workplaces across the country in which hundreds of undocumented immigrants were arrested. Employers of foreign workers, particularly in industries that employ a lot of low-skill migrants like agriculture or construction, should prepare for increased scrutiny and more site visits from immigration authorities. As a panel of immigration law experts advised CEB members in a webinar last week, now is a very good time for HR departments to double-check that all the paperwork for all their non-citizen employees is in order.
It is also important to remember that policy changes in this area don’t only affect undocumented individuals; legal immigrants will also face increased scrutiny from the authorities and pressure to carry proof of their legal status. They may also have friends, neighbors, or family members who are undocumented and now find themselves targeted. In an atmosphere of heightened tensions around immigration, foreign employees may require additional support.