Homeland Security Shifts Focus to Unscrupulous Employers in Worksite Enforcement Policy

Earlier this Spring, the Department of Homeland Secretary’s (“DHS”) Immigration and Customs Enforcement, or “ICE,” announced a shift in policy in its enforcement of worksite compliance laws. ICE will now be seeking out employers with egregious immigration law violations. ICE is DHS’ investigative arm and is charged with enforcement of worksite compliance. Its enforcement activities relate to both employers who knowingly hire employees unauthorized to work in the United States, and to unauthorized employees themselves when found in the workplace.

Marcy Forman, Director of the Office of Investigations for ICE, said that ICE will “target unscrupulous employers who prey upon aliens by subjecting them to poor or unsafe working conditions or paying them sub-standard wages.”

ICE identified several reasons why some employers knowingly hiring employees without work authorization including gaining an advantage over the competition by paying such workers lower wages, and not complying with tax and other requirements to which all other U.S. employers are subject. According to Ms. Forman, ICE’s highest priority will be the most egregious violators, “namely employers who engage in human smuggling, identity theft, and social security fraud.” She also identified another target of intense ICE scrutiny: locating employers who hire those without work authorization that affect national security, or who are part of critical U.S. infrastructure locations such as airports and military bases.

ICE will utilize increased administrative fines as punishment for an employer’s noncompliance, and, at the same time, will reach out to U.S. employers and provide training and information on best practices to prevent the introduction of persons without work authorization into the workforce.

The current ICE policy is a significant change from the Bush administration’s approach. Under the Bush Administration, ICE conducted major raids of large employers with substantial numbers of foreign workers and arrested large numbers of unauthorized workers. ICE then criminally prosecuted both corporate management and unauthorized workers in an effort to send a message and deter large numbers of unauthorized workers from working or even remaining in the U.S. In one ICE raid in 2008, at Agriprocessors, Inc., ICE arrested more than 300 employees on criminal immigration charges and has obtained two (2) convictions of corporate management. The charges included harboring illegal aliens, aiding and abetting, and conspiracy to hire illegal aliens. Notwithstanding these efforts, the Bush Administration acknowledged the limitations in this approach.

The real remedy to large numbers of unauthorized persons both in the U.S. and in the workplace, is a change in U.S. immigration law to better address the nations’s actual manpower needs. Called “Comprehensive Immigration Reform (“CIR”),” proposed immigration legislation to address major aspects of the country’s needs, includes border enforcement, a meaningful guest worker program, and a means to provide legal status to a significant number of the unauthorized population. Many attempts at advocating CIR have been made in Congress during the last several years. President Obama has indicated that he wants to make CIR a priority in 2009. But with the nation in severe recession and unemployment at a 25 year high, two foreign wars ongoing, and health care reform also being priorities, there is a question of whether the Obama Administration will act in 2009 on the always contentious issue immigration policy. In the mean time, ICE’s enforcement plan will now shift from criminal prosecutions to administrative fines as punishment for employer workforce immigration violations.

Employers concerned about how the new policy may affect them could benefit from consulting a skilled and experienced immigration attorney to advise on how best to comply with current worksite-related immigration laws.

*Stewart Rabinowitz is President of Rabinowitz & Rabinowitz, P.C., a Dallas based imigration law Firm. (http://www.rabinowitzrabinowitz.com). He has 30 years of legal experience and is Board Certified by the Texas Board of Legal Specialization.