Enforcement Preparation and Defense

Worksite Enforcement

Another significant concern for employers involves the real specter of worksite enforcement actions by the U.S. Immigration and Customs Enforcement (ICE). Under U.S. immigration laws, employers are required to verify on Form I-9 the identity and employment authorization of all employees, regardless of nationality, who started work on or after Nov. 6, 1986. Employers who violate these employment eligibility requirements are subject to civil monetary penalties and possible criminal prosecution. They also may be fined for knowingly employing unauthorized aliens or other Form I-9 violations, including failure to complete the Form I-9 properly, wrongful discrimination against job applicants on the basis of nationality or citizenship, and immigration-related document fraud.

In the past, the prospect of monetary penalties did not appear to have much of a deterrent effect on employers, who often came to view these fines as simply the “cost of doing business.” In recent years, however, ICE has intensified its efforts to enforce worksite violations. More importantly, ICE is bringing criminal charges against employers with much greater frequency. The Department of Homeland Security recently increased the fine structure for offending employers significantly. In addition, the ICE budget for investigations has increased substantially and this has led to several highly publicized large-scale worksite raids and investigations at well-known corporations, such as Wal-Mart, Swift, and Tyson Foods. Through these and other worksite enforcement actions, the government is making it clear that the continued employment of undocumented workers is a major problem that is best addressed through the application of the federal criminal and asset forfeiture laws.

As a result of these actions, the government no longer is issuing small fines to employers who commit serious Form I-9 violations. ICE now is conducting lengthy criminal investigations that result in indictments of company owners, executives, managers, and other company personnel involved in these illegal activities. Criminal charges include harboring illegal aliens, money laundering, and/or knowingly hiring illegal aliens. These offenses can carry a potential 10-20 year prison sentence, plus forfeiture of all company assets and revenues utilized in this illegal activity.