Nearly one in every four restaurant workers was born outside of the United States, according to the National Restaurant Association (NRA). So when immigration rules and enforcement priorities change, it can have a profound impact on restaurants and their employees.
Based on recent and upcoming changes, restaurants are more likely than in the past to experience immigration raids and audits.
So how can your restaurant be prepared?
The National Restaurant Association and its Restaurant Law Center set out to answer this question with an informative webinar called “Immigration in Focus: What Restaurants Need To Know About Compliance and Response.”
NRA leaders appeared alongside experts from Littler, an employment immigration law firm. Together, they offered extremely detailed guidance on how to prepare for changing immigration rules and enforcement priorities, as well as how to protect yourself and your employees.
The Panel
- Karly McBride – Virtual Events and Operations Manager, National Restaurant Association (host)
- Robin Repass – Executive Director and Chief Legal Counsel, Restaurant Law Center
- Jordan Heiliczer – Director of Labor and Workforce Policy, National Restaurant Association
- Bruce Buchanan – Senior Counsel, Littler (Nashville), employer-side immigration and compliance specialist
- Deepti Orekondy – Special Counsel, Littler (Miami), focusing on business and family-based immigration
The webinar primarily focused on three topics:
- Current immigration enforcement trends
- I-9 compliance
- What to do if Immigration and Customs Enforcement (ICE) shows up at your restaurant
The panelists provided a combination of practical and technical advice. But the big takeaway is primarily this: Immigration rules and enforcement actions targeting restaurants are happening with more frequency and with more severe penalties than in the past. Your restaurant must be prepared.
Below, we’re highlighting some of the steps you’ll need to take to navigate changing restaurant workforce immigration policy including how to make sure your paperwork is in order and how to develop a restaurant immigration enforcement action plan.
An Important Disclaimer
The information here is based on what we learned while attending the NRA webinar. Though the NRA panel included legal professionals, we are not legal professionals. The discussion that follows is for informational purposes only and is not intended to serve as legal advice. You should consult your legal counsel as you navigate changing restaurant workforce immigration policy.
Why Immigration Compliance Is So Important Right Now for Restaurants
As restaurant workforce immigration policy shifts, it has the potential to be extremely disruptive for restaurant operators. As Jordan Heiliczer explained during the webinar, “This is an incredibly labor-intensive industry. Without enough workers, you're not able to fully staff your shifts. You may not be able to deliver the service your customers expect, and you may not be able to grow the way that you want.”
The NRA’s Restaurant Law Center is focused on advocating for long-term reform of the current immigration policies coming out of Washington. The webinar does a great job of laying out the Law Center’s priorities as well as highlighting the urgent mismatch between current federal immigration policies and the actual labor needs of restaurant operators.
However, in the immediate term, the gathered panelists strongly agreed that restaurants must do everything they can to follow the current set of rules. But Jordan acknowledges that many of these changes are coming at a rapid pace.
“When things like immigration status, work authorization, or enforcement policy changes by the administration here in Washington, our industry can feel it more quickly than most,” Jordan observed. “More than half of operators have said that recent immigration policy changes have negatively affected their restaurant.”
Following the Current Restaurant Workforce Immigration Policy
When it comes to immigration enforcement actions, certain factors are beyond your control as a restaurant operator. However, Jordan stressed the importance of following all the rules and filling out all the right paperwork as a baseline way of protecting your restaurant and staff.
Here’s a closer look at how you can do that:
I‑9 Compliance
Form I-9 is one of the basic building blocks for remaining compliant with immigration law. You can access Form I-9 through the U.S. Citizenship and Immigration Services (USCIS) website. Also worth noting, when you work with a reputable third-party hiring vendor, your provider may be able to help streamline I-9 compliance as you onboard new employees.
What Is Form I-9?
This is a form that must be completed for every single employee that you onboard. Deepti Orekondy explains, “Its purpose is to verify the identity and work authorization for each employee that you have.”
Employees who were hired before November 6, 1986 are exempt from this requirement. Outside of this exemption, your restaurant is required to complete the I-9 form and verification process for every single employee that you hire.
The Submission Timeline
The Form I-9:
- Must be completed by a new employee before the first day of employment, and
- Must be filed by the employer within three business days of the first day of employment.
Make sure you don’t miss these deadlines. Late submission may later be discovered during an audit, which could result in a financial penalty.
The Documents You Need for I-9 Verification
As an employer, you are required to verify the identity and work authorization of prospective employees. When you hire a new employee, you must request and personally review certain specified documents in order to confirm both identity and work authorization.
The USCIS breaks these accepted documents into three lists. It’s extremely important that you follow the rules for verification as closely as possible. Therefore, we’re including the full list of accepted documents, taken verbatim from the USCIS website:
- List A: Docs that prove both identity and work authorization. Prospective employees who can present one of these documents are eligible to work for you:
- U.S. passport or U.S. passport card
- Permanent resident card or alien registration receipt card (Form I-551)
- Foreign passport that contains a temporary I-551 stamp or temporary I-551 printed notation on a machine-readable immigrant visa
- Employment authorization document that contains a photograph (Form I-766)
- Foreign passport with Form I-94 or Form I-94A with arrival-departure record, and containing an endorsement to work
- Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI) with Form I-94 or Form I-94A indicating nonimmigrant admission under the Compact of Free Association Between the United States and the FSM or RMI
- List B: Docs that only prove identity. Prospective employees who can present one of these documents must also present a document from List C, below, in order to be eligible for hire.
- Driver's license or ID card issued by a state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address
- ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, sex, height, eye color, and address
- School ID card with a photograph
- Voter's registration card
- U.S. military card or draft record
- Military dependent's ID card
- U.S. Coast Guard Merchant Mariner card
- Native American tribal document
- Driver's license issued by a Canadian government authority
- List C: Docs that only prove authorization to work in the U.S. Prospective employees who can present one of these documents must also present one of the documents from List B, above, in order to be eligible for hire.
- U.S. Social Security card
- Certification of report of birth issued by the Department of State (Forms DS-1350, FS-545, FS-240)
- Original or certified copy of birth certificate issued by a state, county, municipal authority, or territory of the United States bearing an official seal
- Native American tribal document
- U.S. citizen ID card (Form I-197)
- Identification Card for Use of Resident Citizen in the United States (Form I-179)
- Employment authorization document issued by the Department of Homeland Security (DHS)
Why the Little Details Really Matter With Your I-9
Another important takeaway from the NRA webinar is the fact that policy changes have significantly expanded upon and raised the financial penalties that restaurants can face for rule violations.
Rule violations fall into two basic categories:
- Technical violations, which may be corrected during an audit without penalty
- Substantive violations, which can’t be corrected and which therefore can lead to significant financial penalties for restaurants
As Littler’s Bruce Buchanan explained, the federal government has dramatically narrowed the list of technical violations.
“They changed 11 violations to substantive,” Bruce noted, “and they're big.”
Among the previously technical violations that are now substantive, Bruce points to:
- Missing or incorrect:
- Document title
- Issuing authority
- Document number
- Expiration date in Section 2
- Missing employee signature date in Section 1
- Missing employer representative title
- Using the Spanish I‑9 outside of Puerto Rico
Restaurants are already being charged with real and significant fines for missing these details. These fines are also being dished out per violation, and they can add up fast.
A Few More Important Rules To Keep in Mind
- Personal verification: As an employer, it’s your responsibility to personally review and verify the documents provided by prospective employees. Even if you are working with a third-party onboarding vendor, be sure you know what type of documentation is required and how best to verify this documentation.
- Document retention: You are required to keep an employee’s I-9 on file for the longer of:
- Three years from date of hire, or
- One year from date of termination
- Legal counsel: Be sure to consult legal counsel at every step in the process to ensure compliance, especially as rules and penalties continue to change.
What To Do When the Government Shows Up at Your Restaurant
After a lengthy discussion on the technical details, the NRA webinar also provided practical guidance for anticipating and dealing with enforcement actions such as audits and raids. The panel warned that enforcement agencies view restaurants as low hanging fruit for finding violations.
Restaurants that pay their workers in cash or who cut corners during the I-9 verification process are especially vulnerable. Webinar panelists agreed that operators should avoid both of these liabilities. However, it’s also true that enforcement actions are targeting small, independent, and ethnic restaurants regardless of whether they’re following the rules.
With that in mind, every restaurant needs to be prepared for each of the following enforcement scenarios:
I-9 Audit
If your restaurant is being audited, you will typically receive both a notice of inspection and a subpoena detailing exactly what you must provide to be in compliance. You will usually be required to hand over your I-9s and any records related to them.
You will usually have three business days to respond to this notice (and experts strongly urge you to do so) by correcting any technical errors. You may not, on the other hand, correct substantive errors during this period.
Key Tips
- It’s extremely important to note that a notice of inspection alone does not give ICE the right to enter your business.
- Take preemptive measures to prevent getting cited for violations. Deepti recommended doing your own internal I-9 audits. He advised operators, “Take about 10% of your I‑9s, review those… If you notice repeat errors, that may indicate that you want to do a full audit.”
Administrative Warrant
An administrative warrant is a document issued to ICE by the Department of Homeland Security and must be signed by an immigration judge. This document is typically used when ICE is seeking a specific individual.
It is sometimes referred to as a “knock and talk” tactic because an administrative warrant does not grant ICE the legal right to enter a non-public area without consent. An administrative warrant is not the same as an ICE raid, which requires a judicial warrant. (We’ll dig a little deeper into judicial warrants below.)
Key Tips
- “If you are the employer and ICE shows up with an administrative warrant, you are not obligated to comply and produce the individual,” Deepti explained. “You can if you would like to, but you are not obligated to.”
- The best course of action is to request a copy of the administrative warrant, indicate that you will contact your legal counsel, and resist any pressure to make decisions on the spot.
- Bruce also warned that, if agents are dissatisfied with your level of cooperation, ICE may choose to escalate action with a broader audit of your operation. Be prepared for escalation and have a restaurant immigration enforcement action plan in place for handling that scenario.
ICE Raid (Judicial Warrant)
“If you actually are a subject of an ICE raid, you're going to know it,” Bruce warned.
ICE raids are often conducted with mistakable force. For larger restaurants, Bruce says, it’s not uncommon to see more than 50 agents surround a restaurant along with aerial support from helicopters. ICE also commonly calls for reinforcements by borrowing agents from other DHS departments for larger raids.
During an ICE raid, a lead agent will typically present a judicial warrant. Unlike an administrative warrant, a judicial warrant gives agents the authority to enter non-public areas like your restaurant. The areas that may be searched must be specified in this warrant.
Key Tips
- Make sure ICE agents actually have a judicial warrant before complying, and request a copy. Bruce explained that “If the top says United States District Court, that is a judicial warrant. It's issued by a district court. Secondly, it should literally say ‘search and seizure warrant.’”
- Stay out of the way, avoid physical interference, and focus primarily on keeping your staff calm and safe. Deepti advised, “If you have any objections to the action of law enforcement, we always recommend that you voice your objections. But do not confront them. Do not get in their way because that can also be seen as an obstruction of justice, and it can lead to a dangerous situation.”
- Pay close attention to the areas of your restaurant that are being searched as well as the items and people who are taken during a raid. These will be important details to provide to your legal counsel as you consider your next steps.
More Changes Are Coming
Panelists also acknowledged that the current administration continues to ratchet up the intensity and frequency of its immigration actions. Bruce noted, “We're going to see more immigration enforcement. These actions had gone down somewhat… [but White House Border Czar Tom] Homan promises that they're going to bring them back bigger and better.”
A perfect example is the issue of Temporary Protected Status (TPS). This status has historically been granted to individuals from countries experiencing unsafe conditions. However, the current administration is actively terminating TPS designations for people from a variety of countries.
This means that even an employee with a valid EAD (Employment Authorization Document) card can suddenly lose their authorization to work in the U.S. if their country’s TPS designation is terminated.
The burden is on you as the employer to be aware of the TPS status for countries from which you draw employees. If you do have employees who lose their TPS status, be sure to consult legal counsel for how best to handle each individual situation.
Being Prepared for Whatever Happens Next
Bruce also warned that Congress is highly unlikely to make any meaningful reforms to the overall policy in the near future. So restaurants should expect regulations to grow more stringent and enforcement actions to grow more frequent. This means that you need:
- A good system for reviewing, processing, and auditing I-9 forms along with the necessary documentation
- Elimination of enforcement risks like cash-only pay to your employees or insufficient paperwork at hiring time
- A clear and detailed restaurant immigration enforcement action plan as well as sufficient employee training around this plan
Putting Together Your Restaurant Immigration Enforcement Action Plan
Panelists agreed that the best way to prepare for the possibility of enforcement action is to have a clear plan in place. Deepti recommended creating a written action plan for handling the scenarios outlined above.
Among the guidelines included in your action plan, you should:
- Designate a person, usually the shift manager, to speak with immigration enforcement agents.
- Provide detailed instructions for:
- Requesting copies of warrant documents
- Distinguishing between different types of warrants
- Understanding how to navigate every possible enforcement scenario
- Educate your staff on their rights and provide guidance on how to avoid escalation when enforcement actions occur.
- Create a contact list and specify a chain of command so your managers know who to contact (HR, ownership, legal counsel, etc.) in each enforcement scenario.
And most importantly, make sure that you’re ready to adjust and pivot as the immigration rules continue to shift.
“Things are changing by the minute,” Deepti observed. “We strongly recommend that everybody create their action plan [and] find legal counsel in advance.”
Not Sure Where To Start?
You can also find strong support for compliance with labor, employment and immigration rules when you partner with a leading third-party hiring and onboarding vendor. Many of these providers include tools designed to ensure regulatory compliance with hiring, onboarding, and employment rules, even as these rules change at the local, state and federal levels.
And to keep up with all the changes affecting restaurant operators today, sign up to receive our weekly newsletter directly in your inbox.
