ICE Workplace Enforcement - March 2008 Update
Posted Mar 14, 2008
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As U.S. Immigration and Customs Enforcement (ICE) continues to step-up careful scrutiny and workplace enforcement, the Attorney General (AG) and the Secretary of the U.S. Department of Homeland Security (DHS) have released updated information on their enforcement efforts. The DHS has increased civil fines against employers for the first time in nearly ten years and ICE has released additional guidance to employers seeking to avoid Form I-9 compliance problems.
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Joint Press Conference of the AG and DHS to Enforce Immigration
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U.S. Attorney General Michael B. Mukasey made a February 22, 2008 announcement revealing new rules that will increase civil fines for employers who violate the Immigration and Nationality Act (INA). This announcement by the AG was made at a joint press briefing with DHS Secretary Michael Chertoff. At that briefing, Secretary Chertoff explained that these increased fines under the INA are part of a program including more than two dozen reforms meant to strengthen border security and immigration law enforcement. He emphasized that these actions follow recent failures to pass comprehensive immigration reform legislation.
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Substantially Higher Fines to Increase Worksite Enforcement
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Civil fines for employers who violate U.S. federal immigration laws will increase by 25 percent, on average, effective March 27, 2008. This means an increase of as much as $5,000 per violation, for the most serious category. These civil fines are being adjusted for inflation and have not been increased since 1999.
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Under the INA, employers may be fined for knowingly employing individuals who are not employment authorized, for failure to comply with the requirements relating to employment eligibility verification forms, and for immigration-related document fraud. The new minimum penalty for knowingly employing unauthorized workers is $375. The maximum penalty for a first violation is $3,200, and $16,000 for multiple violations. These fines are assessed on a per-employee basis; thus, the potential exposure for many employers is substantial.
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Workplace Enforcement Includes Criminal Charges and Asset Forfeitures
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As regular MurthyDotCom and MurthyBulletin readers may recall from our May 5, 2006 article DHS Increases Enforcement against Employers, the DHS monitors and enforces workplace immigration laws through its enforcement division - the U.S. Immigration and Customs Enforcement (ICE). It should be noted that DHS and ICE enforcement mechanisms against employers include not only civil fines, but potentially criminal law charges as well as federal asset forfeitures.
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In 2006, Secretary Chertoff announced a tougher approach to the investigation and prosecution of employer violations. At the February 22, 2008 press conference, he stated that, in fiscal year 2007, ICE made 863 criminal arrests, which included 92 individuals in managerial or supervisory positions. DHS and ICE also made over 4,000 administrative arrests during that period.
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Employer Rights during DHS Investigations
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For each of the workplace violations described above, an employer has the right to a hearing before an administrative law judge in the U.S. Department of Justice's Executive Office for Immigration Review. This is similar to the procedure that allows an employer to challenge the U.S. Department of Labor's (DOL) workplace enforcement findings and recommended civil fines before an administrative law judge. An employer may challenge ICE or DOL administrative subpoenas by filing an appropriate action in federal court.
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ICE Issues Worksite Enforcement Advisory on Document Fraud
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ICE issued an advisory (PDF 275KB), alerting employers to beware of a new trend in false documents presented by unauthorized foreign workers. ICE describes a commonly found 'three pack' that includes a false Social Security card, state driver's license or identity card, and a work authorization document (or EAD card). Typically, an unauthorized worker also assumes the identity of a foreign national who is authorized to work, using that individual's documents with a photograph fraudulently added.
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False Claims of Citizenship on I-9 Forms
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ICE has found that many unauthorized workers falsely claim to be U.S. citizens when completing I-9 forms at the time they are hired. These violations may be found when ICE conducts I-9 audits of individual employers and their workers. At one worksite, many unauthorized employees supplied false Social Security numbers (SSNs) issued in Puerto Rico.
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ICE Methods of Enforcement include Subpoenas
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ICE is empowered to issue administrative subpoenas to employers demanding, among other things, I-9 records, immigrant and nonimmigrant petitions, H1B public access files, employee payroll, and federal tax documents. Any employer receiving such a subpoena should take it seriously, given the broad enforcement options available to ICE.
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Conclusion
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These recent increases in civil fines, workplace investigations, and arrests are the result of the tougher approach taken by DHS and ICE. Employers can no longer hide behind claims that they did not know of unauthorized employment, if it can be shown that the employer should have known about a violation. Employers should be aware of their responsibilities and rights under U.S. federal law. This is an appropriate time to engage a knowledgeable and experienced immigration attorney, if one has not already done so.