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 webinar primarily focused on three topics:
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.
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.
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.”
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:
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.
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 Form I-9:
Make sure you don’t miss these deadlines. Late submission may later be discovered during an audit, which could result in a financial penalty.
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:
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:
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:
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.
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:
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.
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.)
“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.
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.
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:
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:
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.”
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.
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