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.