In the January 5, 2010 Federal Register, U.S. Immigration and Customs Enforcement (ICE) outlined (pdf) its two-phase process for updating the Student and Exchange Visitor Information System (SEVIS). SEVIS collects information on:
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The Contra Costa Times reports that this month over 1,000 businesses will face forensic audits conducted by United States Immigration and Customs Enforcement (ICE). Many businesses, e.g., those involved in the food supply chain, have been targeted because they are connected to public safety and to the United States’ “critical infrastructure.”
At a symposium in Washington, D.C., US Citizenship and Immigration Services (USCIS) announced that today (November 19, 2009), an additional 1,000 Notices of Inspection (NOI) will be issued. This is a significant move and reveals the administration's intent to increase enforcement actions against employers that engage in the unlawful hiring of undocumented workers. This year alone, Immigration Customs and Enforcement has issued 1,044 NOIs, which is three times as many NOIs than were issued in 2008. Adding another 1,000 NOIs drastically increases this statistic. To further illustrate the administration's aggressive pursuit of employers, Notices of Fines totaling $24 million have been issued in 2009, compared with $2.4 million in 2008. Also, during 2009, 100 companies and individuals have been barred from doing business with the federal government, whereas only one company was barred last year.
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The Department of Homeland Security (DHS) has issued a proposed rule (pdf) rescinding regulations instituting safe harbor procedures for employers that receive no-match letters from the Social Security Administration (SSA) or notice of suspect documents letters from the U.S. Immigration and Customs Enforcement (ICE) regarding their employees’ authorization to work in this country.
Read full story on Littler's Washington DC Employment Law Update blog.
The Immigration and Customs Enforcement (ICE) has announced that it will begin to investigate workplaces in all 50 states to identify employers who are hiring undocumented workers. Specifically on July 1, 2009, ICE launched a comprehensive audit initiative and issued Notices of Inspection (NOIs) to 652 businesses nationwide. States are also beginning to increase their enforcement efforts so employers should take steps to ensure compliance with both federal and state immigration requirements. Continue reading Littler ASAP "Latest Developments in Employment Verification Enforcement" by Jorge R. Lopez, Chadwick M. Graham and Melissa M. Randall.
Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
On July 1, U.S. Immigration and Customs Enforcement (ICE) initiated a significant new audit initiative by issuing Notices of Inspection (“NOIs”) to 652 businesses, which is more in one day than ICE issued throughout the entire last fiscal year. ICE’s announcement of this action stated:
This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.
The NOIs alert business owners that ICE will be inspecting their hiring records to determine whether they are complying with employment eligibility verification laws and regulations. The 652 businesses presented with NOIs for a Form I-9 audit were selected as a result of investigations; the names and locations of the businesses were not released.
On April 30, the Department of Homeland Security (DHS) issued a Fact Sheet discussing its revised Worksite Enforcement Strategy. The DHS enforcement strategy was revised at the direction of DHS Secretary Janet Napolitano after she expressed concerns that enforcement efforts were targeted more at employees rather than employers abusing the law. Indeed, the Fact Sheet acknowledges that there were more than 6,000 arrests related to worksite enforcement in 2008, but only 135 employers were arrested.
The revised strategy "reflects a renewed Department-wide focus targeting criminal aliens and employers who cultivate illegal workplaces by . . . knowingly hiring illegal workers." Immigration and Customs Enforcement (ICE) is to focus its resources on the criminal prosecution of employers that knowingly hire illegal workers, but will continue to arrest and prosecute illegal workers found during the course of worksite enforcement actions. ICE will also use all available civil and administrative tools, including fines and debarment, to deter illegal employment.
The Fact Sheet indicates that ICE will look for evidence of mistreatment of workers in addition to evidence indicating criminal conduct such as trafficking, smuggling, harboring, visa fraud, identification document fraud, or money laundering. Before conducting a raid and arresting workers at the site of employment, ICE will obtain indictments, criminal arrest or search warrants, or a commitment from the US Attorney's office to prosecute the employer. The existing humanitarian guidelines governing ICE’s behavior in raids affecting 150 or more employees will now apply to worksite enforcement efforts impacting 25 or more illegal workers.
The revised enforcement strategy suggests that there will be increased criminal enforcement efforts and interagency cooperative investigations. It is likely that ICE will continue the growing trend of planting agents within the employer's workforce to gather evidence of criminal activity. Going forward, it is almost a certainty that enforcement efforts will begin with an audit of I-9 compliance, particularly for employers in industries with high percentages of illegal workers, as well as for employers engaged in infrastructure projects. A recent Congressional Research Service report (PDF) analyzing unauthorized employment in the U.S. listed the following industries as having significant (over 10%) employment of illegal workers: Food Manufacturing, Agriculture, Furniture Manufacturing, Construction, Textiles and Apparel, Food Services, Administrative and Support Services, and Accommodation. Employers in these industries should review their I-9 compliance and adopt best practices to avoid adverse consequences related to employment of unauthorized workers.
This entry was authored by David Whitlock.
Homeland Security Secretary Janet Napolitano has tapped a hot-button immigration issue by aiming enforcement efforts at employers. As reported in the Los Angeles Times, field guidelines for the Department of Homeland Security’s Immigration and Customs Enforcement agents will shift focus away from workplace raids aimed at rounding up individual undocumented workers and, instead, will go after the employers themselves. An emphasis will be placed on arresting and prosecuting employers who knowingly employ undocumented workers.
This shift is in line with a declaration made by President Barack Obama during last year’s campaign in which he claimed that past enforcement policies had failed because they focused on the individual rather than the employer. Targeting employers is a strategic attempt to reduce the supply of jobs available to undocumented workers. But with an estimated 12 million people currently living in the United States illegally, the shift raises uncertainty as to whether there is a sufficient number of willing and qualified U.S. workers to fill positions vacated when employers begin purging their workforces.
The Department of Homeland Security has made it clear that it still plans to conduct worksite enforcement raids. Still, this fundamental shift in priorities raises serious additional concerns for employers who could find themselves facing criminal charges. Even though it is difficult to prove that an employer “knowingly” employed undocumented workers—which provides a potentially large loophole for employers—the threat alone may have a significant impact on the workplace.
This entry was authored by Chad Graham.
President Obama has announced his intention to nominate John Morton to be the Assistant Secretary for Immigration and Customs Enforcement (ICE), and U.S. Department of Homeland Security Secretary Janet Napolitano named Esther Olavarria as Deputy Assistant Secretary for Policy.
Secretary Napolitano said:
John Morton and Esther Olavarria are tremendous additions to our Homeland Security team. Both have demonstrated an extraordinary commitment to public service and both will be able and effective partners as we tackle the very complex issues surrounding immigration and securing of our borders.
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