ICE Aims for Employers

New guidelines instruct U.S. Immigration and Customs Enforcement officers to cast a wider net in enforcing immigration laws in the hopes of reeling in employers.

By MATTHEW BRODSKY, senior editor/Web editor of Risk & Insurance®

"The Department of Homeland Security (DHS) has a vital responsibility to enforce the law and engage in effective worksite enforcement to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce." So begins the official Apr. 30 "Fact Sheet" from the DHS, new guidelines distributed to Immigration and Customs Enforcement (ICE) to signal a change in how the U.S. government will handle illegal employment.

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"These guidelines reflect a new Department-wide focus to target, through criminal prosecution, abusive employers who cultivate illegal workplaces by breaking our country's laws and knowingly hiring illegal workers," said Matt Chandler, spokesperson, U.S Department of Homeland Security, in an official statement released to Risk & Insurance®.

"This is a clear message to the millions of businesses who play by the rules, but find themselves competing against others who enter the illegal labor market, that help is on the way," Chandler said.

Yet to many employers, these guidelines might appear less as help and more as a threat.

"It's almost like they're saying, 'We're blaming employers for the illegal immigration problem,' " said Elena Park, head of the immigration practice at law firm Cozen O'Connor. It's almost as if the government is "deputizing" employers and placing the burden of the faulty immigration system on them, she added.

NO BIG CHANGES?

ICE will still pursue illegal employees yet apparently will afford them more protections. For instance, ICE officers now have to follow "existing humanitarian guidelines" during worksite enforcements involving as few as 25 illegal workers. Previously, the threshold was 150. This rule gives officers the leeway to identify and release arrested workers who are sole caregivers, for instance.

And ICE officers cannot arrest employees on a worksite until they "obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer," according to the new guidelines.

Still, Park said, "I don't see what the big change is," adding that she really won't know how this pans out until DHS shares greater detail.

"My continued advice and counsel always is, here are the laws and guidelines we have now," Park said.

New guidelines or not, employers must be vigilant not to hire illegal workers, using all the available tools, including DHS' E-Verify employment eligibility check and the requisite I-9 forms. All the while, they must balance enforcement against the risk of discrimination suits. Zamora v. Elite Logistics is just one of the latest examples in the federal courts of employers that went too far.

"Employers cannot be overly zealous," said Park.

New guidelines or not, the system can be frustrating. Companies that want to abide by the law can find the E-Verify tool error prone, I-9 forms difficult to understand and the laws themselves inconsistent.

Though worker advocates are encouraged by the new guidelines, they appear to share Park's sentiments about the overall immigration system.

"While the announcement by DHS on new guidelines that target employers signals improvements over existing workforce enforcement, we still have a long way to go on immigration reform," wrote one civil rights group, the National Korean American Service & Education Consortium, in its blog.




May 7, 2009

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