In the wake of the failure of comprehensive immigration reform, the Bush Administration’s Department of Homeland Security has publicly stated its goal of “expand[ing] criminal investigations against employers who knowingly hire large numbers of illegal aliens,” and touts the increase in arrests by U.S. Immigration and Customs Enforcement (“ICE”) for criminal violations from 24 in FY 1999 to a record 716 in FY 2006. See http://www.dhs.gov/xnews/releases/pr_1186757867585.shtm. Unfortunately for employers, “knowingly” is a term of art in criminal law and can include both actual knowledge and willful blindness. 18 U.S.C. § 1546(a). Currently, being in possession of certain information – for instance, having multiple employees on the books with the same Social Security numbers – could be used as evidence by ICE of “willful blindness.” Violation of this statute constitutes a felony and can result in imprisonment for up to 10 years and/or fines of up to $500,000.

There are signs that ICE may be ready to broaden the definition of “willful blindness” even further. Although currently unenforceable due to a federal injunction, the ICE regulations regarding the Social Security “no-match letter” program that were issued on August 10, 2007, would impose a series of administrative requirements on employers, essentially requiring them to verify the immigration status of their employees or risk monetary penalties of up to $10,000 per worker for failure to comply. Under the no-match letter program, employers receive letters for employees whose proffered Social Security numbers do not match those in the Social Security Administration (“SSA”) database. Employers are obligated to further investigate those employees whose information does not match.

The courts have still not issued a final decision regarding whether these requirements will become enforceable, but if they do, employers will need to act quickly to avail themselves of the “safe harbors” described. In particular, the rule requires that employers: 1) check their records within 30 days of receipt of the letter to determine whether the discrepancy is the result of the employer’s typographical, transcription or similar clerical error; 2) if the discrepancy is not the result of the employer’s error, the employer should request the employee to confirm that the employer’s records are correct; 3) if the discrepancy is still not resolved, the employer should request the employee to bring the necessary documents to the appropriate agency to resolve the discrepancy within 90 days; 4) if the discrepancy is not resolved within 90 days, the employer must complete a new I-9 form for the employee by the 93rd day; and 5) if the discrepancy is not resolved and the employee’s identity and work authorization are not verified on a new I-9 form using the required documents, the employer must terminate the employee. Despite taking these actions, if other independent evidence exists to show that the employer had reason to know of the employee’s illegal status, the employer is not protected even though the safe harbor procedures were utilized.

In addition to its expanded criminal enforcement, ICE has made clear that it will force change by employers through economic means as well; ICE has been carrying out raids at dozens of workplaces, including a June 12, 2007, raid of a processing plant in Portland, Oregon, that led to the detention of 167 workers who were suspected of illegal status. These kinds of raids can force costly shutdowns of operations, even if workers are later found to be legal immigrants. In the health care industry, a comparable raid could seriously jeopardize patient care if medical aides, orderlies or other low-level hospital workers were similarly detained en masse.

Ultimately, health care employers need to review their policies to ensure they fall into a safe harbor under the new rules. Even if those rules are never officially implemented, meeting their requirements is a safety measure against criminal liability for “willful blindness” to employing workers with false documents.