Navigating unprecedented changes to immigration law

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By Emily Kelchen | for Raise the Bar

Two decades ago, attorney Scott Malyk shifted his focus from business litigation to immigration law. Now, as a senior partner at Meyner and Landis LLP, and the go-to advisor for businesses who need counsel on immigration issues, he’s changing things up again as this area of law undergoes a complete overhaul.  

Were most of the clients you work with prepared for President Trump’s campaigned-upon changes to the immigration system?
No. The uptick in enforcement actions by ICE is unprecedented. 

To give you some statistics, in Q1 2025, ICE reported it had served more than 5,200 Notices of Inspection (NOIs) as a part of a two-phase nationwide operation—worksite compliance followed by worksite enforcement actions. This two-phase initiative is what is most different today—worksite enforcement initiatives don’t end with I-9 compliance (i.e. I-9 inspections followed by civil fines and/or debarment referrals).  

Today, ICE is seeking to utilize intelligence gathered from I-9 audits to conduct enforcement actions, including administrative arrests of undocumented employees, while threatening criminal liability against the employer for “unlawful employment of unauthorized workers” and “harboring aliens” under 8 U.S.C. Section 1324, the latter of which we have never seen before.  

Is there any way to predict which of your clients might be on ICE’s radar?
ICE does not forecast its strategies to the public—these are largely covert operations.  That said, a common precursor to an ICE audit is a Department of Labor Wage & Hour Investigation. Time and again, we have seen NOIs issued after a business completes a DOL Wage & Hour investigation.  

Additionally, in early April, ICE announced a data-sharing agreement with the IRS, which is very likely to fuel worksite enforcement priorities. This agreement reportedly allows ICE to access tax filings to support non-tax criminal investigations, meaning ICE now has access to tax filing information of businesses, such as Individual Taxpayer Identification Numbers (ITINs), wage filings, and other employer-submitted forms – including W-2s and 1099s. 

ICE may now target employers whose filings suggest a pattern of unauthorized labor, such as businesses with multiple ITIN-linked wage statements, repeated SSN mismatches from SSA, Affordable Care Act (ACA) reporting discrepancies with SSNs, or sudden spikes in 1099 contractor filings. These types of investigations could lead to criminal charges against the owners of the business, under 18 U.S.C. § 1001 (false statements on federal forms), 26 U.S.C. § 7206 (filing false or fraudulent tax documents) and related regulations.

What do you wish other attorneys understood about immigration law?
It’s best to proceed with caution. There’s a big difference between document review (which any lawyer can do) and dispensing immigration advice. The safest approach is often referring such matters to competent immigration counsel or pursuing a strategic partnership with immigration counsel rather than going it on your own.  

It’s also important to note that in-house counsel and outside general counsel should consider whether this type of advice is ethically feasible to do on their own, as conflicts may arise between the employer and employees in an enforcement action.

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 Raise the Bar is written and curated by Emily Kelchen and edited by Bianca Prieto.