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United States: Worksite Enforcement Of U.S. Immigration Law
A Comprehensive Review Of The Federal Government’s 2007 Worksite Enforcement Act
12 February 2008
Article by Scott W Wright
Executive Summary

This article analyzes immigration enforcement actions taken against employers in approximately forty states over the course of 2007.

U.S. Immigration and Customs Enforcement (ICE) was established in 2003 as a sub-agency of the newly formed U.S. Department of Homeland Security (DHS). ICE took over responsibility for enforcing immigration law from the disbanded Immigration and Naturalization Service (INS), while U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) assumed responsibility for other INS functions. For the first two years of its existence, ICE confined its worksite enforcement efforts mostly to work locations that involved national security or critical infrastructure. By 2006, the agency had dramatically shifted those efforts to other types of workplaces, particularly those that had long been associated with employing large numbers of illegal aliens. Highly orchestrated, simultaneous raids, first at manufacturing facilities and later meatpacking plants, drew nationwide media attention—exactly what ICE intended. In those raids, ICE arrested thousands of workers and charged hundreds with identity theft or the use of fraudulent documents.

Bolstered by increased budgets and broad public support, ICE again increased its worksite enforcement activities in 2007. Most of the agency’s significant raids and prosecutions were the result of lengthy investigations, dating back a minimum of several months and in some cases years. Those efforts featured an unprecedented level of collaboration with U.S. attorneys’ offices across the country, and with a variety of other federal and state law enforcement agencies. As the frequency of ICE’s worksite actions rose, their novelty quickly wore off, and most cases received little media attention outside the metropolitan area where a raid or arrests took place.

Lost in that sporadic and scattered media attention is the fact that ICE’s tactics reflect an extraordinary shift in strategy. No longer are those who enforce U.S. immigration laws content, as the INS was, to have administrative judges impose slap-on-the-wrist fines and send illegal immigrants home. Instead, they have prosecuted a surprisingly high number of company owners, managers, human resources personnel and others in federal court, imposed heavy fines, seized property and bank accounts, and even sent people to prison for immigration-related charges. Yet, even as these actions shattered many myths about the government’s unwillingness to apply sustained effort in combatting unlawful employment, these events often failed to resonate in the business community, as other events dominated headlines and priority lists.

This review provides a comprehensive analysis of ICE’s 2007 worksite enforcement activities to underscore why business owners and executives must make immigration compliance a priority in 2008. In studying this report, employers may be able to identify vulnerability points in their organizations and take steps to reduce the potential for an ICE investigation or audit.

For employers, it’s important to realize, among other things, how 2007 was different from 2006, as ICE has shown an ability to adapt and change in its efforts to aggressively curtail illegal employment. Faced with criticism, lawsuits and, in some cases, the reluctance on behalf of federal prosecutors, the agency has steered away from high-profile, multi-site raids, targeting a substantial number of small and medium-sized employers, such as restaurants, construction companies and manufacturing plants.

Today interagency cooperation is the norm, not the exception. It’s not uncommon for a half dozen or more local, state and federal agencies to work together on an investigation—the Social Security Administration, state wage and labor investigators, postal service investigators, the U.S. Department of Labor and others. In some cases, state and local law enforcement agencies, sometimes—but not always—trained by ICE, have taken the lead in investigating alleged violations. This trend is almost certain to grow in the next few years, as numerous states follow the lead of Arizona, Colorado and others, enacting immigration laws and policies of their own.

Meanwhile, ICE has expanded its geographic reach, targeting businesses in parts of the country, from upstate New York to South Dakota and dozens of other locations that had seen little worksite enforcement activity in the past 20 years. The agency has similarly reached deeper into businesses that hire illegal aliens, prosecuting not only owners but managers, human resources personnel, a union steward and others who help illegal aliens get work; in one Missouri case, a federal grand jury indicted a receptionist. Much as prosecutors routinely seize the assets and profits from drug dealing, they have begun targeting assets and cash profits tied to the employment of illegal workers. Severe penalties have been imposed for employing a small number of people: One Ohio employer lost his home, valued at $770,000, for employing four aliens. Even individual workers are sometimes going to prison, in part because of the realization that even the simplest type of identity theft—using someone else’s Social Security number to get a job—is not a victimless crime.

To accomplish such goals, ICE and prosecutors are dusting off long-unused laws to charge individuals with crimes associated with illegal employment. This shift in policy, with no change in the underlying laws, has been the most significant development in immigration enforcement since the passage of the Immigration Reform and Control Act of 1986 (IRCA), when employer sanctions and the I-9 form first came into effect.

The question has now become: Has DHS gone too far, threatening and sometimes imposing too-severe measures against employers who are vigilant and who follow required employment verification procedures?

ICE has also broadened its arsenal of investigative tactics. In Portland, Oregon, for example, ICE worked with an undercover informant, while in Texas undercover agents posed as workers at chicken processing facilities. In fact, the use of undercover agents is now common.

But while employers have sometimes complained about being unfairly singled out, the ICE raids and other enforcement actions are anything but random. Indeed, they have tended to target employers who exploit illegal workers; who brazenly disregard the law; who do more than simply hire illegal aliens (for example, who help them come to the U.S. illegally); or who help criminals and fugitives.

With comprehensive immigration reform all but dead in Congress, 2008 likely promises more of the same, perhaps with some shifts in tactics. Some critics, for example, have called for ICE to focus more on the individuals and syndicates that traffic in fake documents and stolen identities; those who transport, house or otherwise aid illegal aliens; criminals and fugitive; aliens who steal citizens’ or legal residents’ identities; and employers who exploit workers. Regardless what the government ultimately decides is the fairest or most effective way to combat illegal immigration, the fact is that worksite enforcement is here to stay, in one form or another. New immigration legislation won’t change that. Even the most amnesty-oriented immigration bill will require a foundation of strong enforcement if it is to have any hope of being signed by our next president, either Democrat or Republican.

In the last two years the government’s enforcement efforts have succeeded in driving home the point that employers ignore immigration law at their peril. For 2008, especially in highly targeted industries, employers need to be proactive and make immigration compliance a high priority. Preferably before ICE arrives at the door.

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