In recent weeks, Homeland Security Secretary Janet Napolitano delayed a series of proposed immigration raids and other enforcement actions at U.S. workplaces, asking agents in her department to apply more scrutiny to the selection and investigation of targets as well as the timing of raids. These actions signaled a shift in policy from recent Immigration and Customs Enforcement (“ICE”) practices.

In April 2009, new ICE Director Marcy Forman testified before Congress that ICE will continue its enforcement strategy targeting certain employers, particularly those in “sensitive industries.” Ms. Forman testified that “ICE has restructured the worksite administrative fine process to build a more vigorous program. ICE has established and distributed to all field offices guidance about the issuance of administrative fines and standardized criteria for the imposition of such fines. We expect that the increased use of the administrative fines process will result in meaningful penalties for those who engage in the employment of unauthorized workers.”

Based on these statements, we expect ICE to continue prosecution of employers and targeted businesses and executives. Employers need to take steps to protect themselves from both criminal and civil liability, and should ensure that their immigration compliance policies are current and that they have conducted regular internal audits. These actions go a long way to mitigate damages in the event of an audit, reduce the likelihood of prosecution, and help ensure that their workforce is in compliance with the law.