Maryland Bar Bulletin
Publications : Bar Bulletin : August 2009


In a reversal of Bush administration policy that could affect businesses throughout Maryland, the Obama administration has announced a new immigration worksite enforcement strategy aimed at targeting employers that commit immigration-related employment authorization violations. Secretary of the Department of Homeland Security Janet Napolitano has sent guidance to U.S. Immigration and Customs Enforcement (ICE) that shifts the focus of worksite enforcement operations from unauthorized workers to the employers who hire them. ICE will now focus its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly hiring illegal workers.

As opposed to the Bush years, in which worksite raids mainly resulted in the arrest of suspected undocumented workers, ICE is now using all available existing law, both criminal and civil, to penalize and deter unauthorized employment by targeting employers. The stated goal of ICE’s new comprehensive strategy is to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful workforce. ICE prioritizes worksites such as airports that are critical to infrastructure, as well as employers who commit criminal violations or are willfully blind to the presence of unauthorized individuals in their workforce.

IN ALL OF 2008,
of the more than 6,000 arrests made in worksite enforcement actions, only 135 were employers. The ratio of employers arrested is expected to increase as ICE implements the new policy guidance.

Under the new guidance, ICE will redirect the focus of its criminal prosecutions. In all of 2008, of the more than 6,000 arrests made in worksite enforcement actions, only 135 were employers. The ratio of employers arrested is expected to increase as ICE implements the new policy guidance.

In addition, ICE states that it will use all available civil and administrative tools, including civil fines and debarment, to penalize and deter unauthorized employment. This policy shift echoes the written testimony that John T. Morton, the newly-appointed head of ICE, provided at his Senate confirmation hearing, where he stated “Civil fines, in my view, have been underutilized,” and “I would more vigorously pursue civil fines...and work with the Secretary and Congress to dedicate more auditors to the civil fines program.”

The government is wasting no time pursing this new direction. ICE issued a press release in July announcing the launch of a new I-9 audit enforcement effort. According to the July press release, more than 650 employers across the country recently received a Notice of Inspection informing them that their records will be audited to determine if they are in compliance with the Immigration Reform and Control Act of 1986 (IRCA), and other immigration laws. This first wave of notices surpasses the number of notices issued in 2008 and signals that the Obama administration is serious about increasing enforcement.

Under IRCA, employers are required to verify the identity and employment eligibility of each new hire by completing and retaining a Form I-9. The Notice of Inspection provides three days for an employer to surrender its I-9s for inspection. Civil fines for “paperwork violations” (failure to properly complete and maintain an I-9 form) range from $100 to $1,100 for each violation, and fines for substantive violations (employing an unauthorized worker) range from $375 to $16,000.

ICE worksite enforcement cases can be complex and lengthy, and in many instances reveal violations of other laws, such as wage and labor violations. With the Obama administration’s change in immigration enforcement policy, more investigations such as the one that recently resulted in a $20.7 million settlement for employment authorization violations committed by a pallet-and-crate company that employs 5,800 workers should be expected.

ICE began investigating the pallet-and-crate company after receiving a tip that undocumented workers at a company facility were observed ripping up their W-2 forms. The resulting investigation and worksite enforcement has resulted in: payment of $18.1 million in civil forfeitures; payment of $2.6 million in back pay and penalties relating to overtime violations; guilty pleas from nine managers and employees for criminal conduct related to the employment of undocumented workers; and felony indictments against seven managers and executives for criminal conduct related to the employment of undocumented workers. To avoid criminal prosecution, in addition to the $20.7 million payout, the company agreed to engage in an unprecedented compliance and reporting program. If the company complies with the terms of the agreement through 2012, the U.S. Attorney will not seek to prosecute the company for any criminal charges committed prior to the raid.

The government has given notice that it is changing its focus: the primary target of immigration worksite enforcement is now the employer. Given the government’s stated intention to pursue both criminal and civil violations of the employment authorization laws, it is important that Maryland businesses ensure that their employment eligibility verification procedures remain current, and that their Form I-9 records demonstrate compliance with U.S. immigration law.

Michael F. Smith is an attorney with McChesney & Dale, P.C., in Bowie, Maryland. He focuses his practice on immigration and employee benefits.

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Publications : Bar Bulletin: July 2009

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