The Department of Homeland Security (DHS) recently confirmed what many had expected – that the goal of rooting out illegal workers will be based upon a strategy that focuses on employers who knowingly hire illegal workers.  As indicated in an April 30 press release, DHS provided guidelines to Immigration and Customs Enforcement (ICE) directing field offices to focus resources on the “criminal prosecution of employers who knowingly hire illegal workers.”.  

In 2008, 6,287 individuals were arrested in ICE workplace enforcement activities. One hundred thirty-five of those arrested were managers, supervisors or human resources employees facing charges that included harboring or knowingly hiring illegal aliens. In addition, ICE intends to use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment. As even simple I-9 paperwork violations can result in employer fines of $110 to $1100 per I-9, civil fines can quickly add up and can be much higher in the event of a finding of knowingly employing an unauthorized worker.

Employers may want to consider several preventive measures in light of this change in enforcement policy: make sure I-9 procedures are in order; consider using E-Verify or switching to electronic I-9s; consider designating an internal HR person at a corporate or main office to be responsible for reviewing all I-9s that are completed; train (or re-train) staff responsible for I-9 completion; conduct a self-audit of I-9 records; establish a policy for handling Social Security No-Match letters; and formalize review of complaints about possibly illegal workers – do not discriminate but do not ignore them.

Also, be mindful that should you employ foreign nationals under a visa classification such as the H-1B or H-2B visa, these programs are also under close scrutiny from both the DHS (including USCIS and ICE) and the Department of Labor (DOL), which also has enforcement authority over I-9s, H-1B labor attestations, and Fair Labor Standards Act claims of H-2B workers.

Note: This article was published in the May 2009 issue of the Immigration eAuthority.

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