Homeland Security Issues Warning to Employers of Undocumented Workers

Employment Law Reporter, Ervin Cohen & Jessup LLP

On April 30, 2009, the Department of Homeland Security (DHS) issued a Fact Sheet regarding its worksite enforcement strategy. The Fact Sheet serves as a warning to all employers who knowingly hire illegal workers. In particular, the Fact Sheet promises that the DHS, as part of a comprehensive worksite enforcement strategy to reduce the demand for illegal employment and protect employment opportunities for the nation’s lawful work force, will begin to focus on employers who knowingly hire illegal workers as well as the workers themselves. The DHS notes that in 2008, of the 6,000 arrests that were made related to work site enforcement, only 135 were employers. The Fact Sheet warns that the Immigration and Customs Enforcement (ICE) has been given updated worksite enforcement guidance which reflects a new department-wide focus targeting employers who cultivate illegal work places as well as criminal aliens.

While ICE will continue to arrest and process for removal any illegal workers who are found in the course of worksite enforcement actions in a manner consistent with immigration law and DHS priorities, ICE will further use all available civil and administrative tools, including civil fines and debarment to penalize and deter illegal employment. Employer arrests may come without warning: ICE officers will look for evidence of mistreatment of workers, along with evidence of harboring, trafficking, visa fraud, identification fraud and other such criminal conduct and are committed to obtain indictments or search warrants from the U.S. Attorney’s Office to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite.

Existing humanitarian guidelines (designed to prevent prolonged imprisonment or deportation of some undocumented immigrants who are sole caregivers for small children or sick relatives) will be employed at worksites involving 25 or more workers, which reflects a change from the previous threshold of 150. The DHS offers that it will continue to work with partners in the public and private sector to maintain a legal workforce through training and employee verification tools like E-Verify.

In light of the Fact Sheet, employers are advised to audit their I-9 and work visa practices immediately.



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