Increased Enforcement Highlights The Need For Employers To Have Immigration Compliance Programs

This past weekend the United States Immigration and Customs Enforcement (ICE) launched raids in Los Angeles, Atlanta, Chicago, New York, North Carolina, and South Carolina arresting hundreds of undocumented immigrants. While ICE stated that the enforcement action was focused on arresting and deporting convicted felons, the Washington Post reported that many of those arrested had no convictions of any kind. It is no secret that this administration places a high priority on immigration enforcement. The president campaigned with the promise of setting up a new "deportation force" to focus on arresting and deporting undocumented immigrants. On January 25th the president issued an executive order titled "Enhanced Public Safety in the Interior of the United States." At the same time the president called for ending federal funds for "sanctuary cities," which do not automatically hand over illegal immigrants who come to the attention of local law enforcement.

In this climate employers should expect ICE to increase its work site enforcement efforts. During the Bush administration ICE regularly conducted work site raids arresting undocumented immigrants and bringing civil and criminal charges against employers. The criminal exposure included personal criminal liability for some hiring managers and business owners. This creates a unique situation for employers. They welcome quality, foreign workers, but must be careful to confirm their immigration status. Although they are not immigration experts, employers are required to verify the identity and employment eligibility of new hires. Employers must recognize that some employees present what appears to be valid work authorization or other documentation making them eligible for employment. This includes employees or staffing companies who obtained H1B Visas using fraudulent information. This can create civil and criminal liability for the employer. However, there is no need to panic. If an employer has a valid and bona fide immigration enforcement compliance program in place they can mitigate the risk of exposure to penalties.

So what type of work site enforcement should employers expect from ICE? Workplace enforcement falls into two categories: 1) overt work site raids to detain and arrest undocumented immigrants and 2) the I-9 audit also known as the "silent raid."

During the Bush Administration overt work site raids were common-place. The disruption of the raids for employers was immense. The raids...