On April 30, 2009, the Department of Homeland Security (DHS) announced a
major shift in the worksite enforcement program conducted by Immigration and
Customs Enforcement (ICE): “Effective immediately, ICE will focus its resources
in the worksite enforcement program on the criminal prosecution of employers who
knowingly hire illegal workers in order to target the root cause of illegal
immigration.” Until recently, the program focused on unauthorized workers. The
Department issued updated worksite enforcement guidance to ICE agents to
implement this new strategy.
DHS’s announcement explained:
- ICE officers will obtain indictments, criminal
arrest or search warrants, or a commitment from a U.S. Attorney’s Office (USAO)
to prosecute the targeted employer before arresting employees for civil
immigration violations at a worksite.
- ICE will look for evidence of the mistreatment of workers, along with
evidence of trafficking, smuggling, harboring, visa fraud, identification
document fraud, money laundering, and other such criminal conduct.
Enforcement of immigration law has already been a high priority for the
federal government in recent years. In 2008, a majority of all federal
prosecutions (51 percent) were immigration cases. However, only 135 of the 6,000
arrests relating to worksite enforcement were of employers. The shift in
strategy should result in a dramatic increase of criminal arrests and
prosecutions of business owners, managers and supervisors.
Homeland Security Secretary Janet Napolitano is leading this shift. The
Washington Post reported on March 29, 2009 that the Secretary delayed proposed
immigration raids that would have focused on employees to allow for the change.
Significantly, the recent DHS announcement ended with the following: “As a
former border state Governor, Napolitano signed into law one of the toughest
employer sanctions laws in the country in 2007 to target employers who knowingly
hire illegal workers.”
To guard against possible ICE investigations or other enforcement actions,
employers should establish programs to ensure compliance with all immigration
laws, including implementing practices and procedures for the full and proper
completion and maintenance of I-9 forms. For further information or assistance
in creating such compliance programs, please contact a member of McGuireWoods’
Government Investigations or
Labor and Employment teams.