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Legal Alert

Homeland Security Steps Up Interior Enforcement And Threatens Criminal Sanctions

A Special Alert For Employers In Construction, Agriculture, Hospitality, Food Processing, and Textiles

Beginning about six weeks ago, the Department of Homeland Security (DHS) and its Bureau of Immigration and Customs Enforcement (ICE) suddenly focused upon interior enforcement of our immigration laws. This has resulted in highly publicized raids on employers, I-9 inspections, detention of deportable aliens, and lots of media coverage. Employers in some industries are more at risk for government investigation and sanctions than others simply because of the perception that those industries have historically employed aliens in relatively low-wage positions in our economy. These industries include construction, agriculture, hospitality, food processing, and textiles. Employers in these industries need to take immediate steps to reduce the risk of enforcement action.

Most alarming is DHS's stated intent of using criminal sanctions to stop "systemic violators" of our immigration laws. In two major raids in the last four weeks, DHS and ICE have arrested managers and accused them of harboring illegal aliens by virtue of continuing their employment. In the Fischer Homes case last week, the Company’s job site superintendents were arrested apparently because they did not forbid a contractor from allowing its employees to work on the Company’s job sites after an ICE agent told the superintendents that the workers were illegal. DHS and ICE assert that allowing a contractor’s illegal workers to continue working constitutes harboring of illegal aliens. The penalty is 10 years in prison and/or $250,000 in fines per alien.

Separately, DHS has indicated that it will prosecute employers that ignore the Social Security Administration (SSA) mismatch letter on the theory that workers who show up on the mismatch list year after year must be illegal workers. Indeed, in the wake of the IFCO raids a month ago, DHS Secretary Michael Chertoff specifically stated that one piece of evidence leading to the arrest of 7 IFCO managers was the fact that the company had ignored the SSA mismatch letter for over 10 years and that over 50 percent of IFCO’s workers showed up on the mismatch list.

Employers can take steps to avoid or reduce the risk of enforcement action.

Finally, if you believe your I-9 compliance is very good and you can tolerate the possible loss of falsely documented workers, consider asking ICE to come review your I-9 forms.

This step should only be taken after consultation with competent counsel regarding your I-9 compliance. Naturally, there is a chance that ICE will accept your offer, but there is also a chance they will politely decline on the theory that you can’t possibly be a systemic violator if you invite them to come audit you.

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