Obama Administration Targets Employers in Immigration Worksite Enforcement Investigations
In a reversal of Bush administration policy, on April 30, 2009, the Obama administration implemented a revised immigration worksite enforcement strategy targeting employers that commit immigration-related employment authorization violations. The Obama administration policy shifts the focus of worksite enforcement operations away from unauthorized workers and onto the employers who hire them. Immigrations and Customs Enforcement (ICE) now focuses 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 now uses all available existing law, both criminal and civil, to penalize and deter unauthorized employment by targeting employers. The stated goal of this 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.
ICE is using criminal, as well as all available civil and administrative tools, including civil fines and debarment, to penalize and deter unauthorized employment. In early October 2010, Department of Homeland Security (DHS) Secretary Janet Napolitano reported that, since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions-more than during the entire previous administration. In addition, 196 employers were arrested for criminal violations related to worksite enforcement. If anything, ICE enforcement has only increased since these figures were reported.
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 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 clear notice that the primary target of immigration worksite enforcement is now the employer. Given the government's fervent pursuit of both criminal and civil violations, it is important that businesses ensure that their employment eligibility verification procedures remain current, and that their Form I-9 records demonstrate compliance with U.S. immigration law.
