On April 11, 2017, the Attorney General released a memorandum to all federal prosecutors entitled “Renewed Commitment to Criminal Immigration Enforcement” (DOJ memorandum). The DOJ memorandum identifies the following statutory offenses as higher priorities and asks federal prosecutors to increase their efforts in these areas to “establish lawfulness in our immigration system.”
- 8 U.S.C. § 1324 (bringing in and harboring certain aliens), as well as 8 U.S.C. § 1327 (aiding and assisting criminal aliens to enter) and 8 U.S.C. § 1328 (importation of aliens for immoral purposes)
- 8 U.S.C. § 1325 (improper entry by alien)
- 8 U.S.C. § 1326 (reentry of removed aliens)
- 18 U.S.C. § 1028A (aggravated identity theft) and 18 U.S.C. § 1546 (fraud and misuse of visas, permits and other documents)
- 18 U.S.C. § 111 (assaulting, resisting or impeding officers)
The DOJ memorandum also directs each judicial district to designate a Border Security Coordinator whose responsibilities will include overseeing the investigation and prosecution of the foregoing offenses. In his speech following the release of the memorandum, the Attorney General also addressed increasing the number of administrative immigration judges, noting that the Administration intends to appoint 50 additional immigration judges to the agency in 2017 and 75 in 2018.
The DOJ memorandum was issued after President Donald Trump signed a series of Executive Orders that, among other things, directed DOJ and the Department of Homeland Security (DHS) to increase criminal and civil immigration-related enforcement.
How Does DOJ’s Increased Focus on Immigration Enforcement Affect U.S. Employers?
While the Attorney General’s announcement focused on individuals and their crimes, DOJ’s increased focus on immigration offenses could have an effect on employers, particularly businesses whose workforces include foreign nationals.
Under prior administrations, DOJ used 8 U.S.C. § 1324, the legal provision cited in its recent memorandum, to investigate and prosecute employers for employing unauthorized aliens. Under Section 1324, it is a felony to knowingly help an unauthorized alien enter the United States, knowingly or recklessly disregard the transportation of unauthorized aliens within the United States, encourage an alien to enter or reside in the United States in violation of law, or engage in a conspiracy or aid and abet the commission of any of these acts. In the past 15 years, under both Presidents George W. Bush and Barack Obama, there were a series of high-profile corporate prosecutions and settlements involving employers with unauthorized aliens in their workforces that provide a window into how DOJ might prosecute companies under its new initiative.
A few notable Section 1324 cases include:
- Tyson Foods (2003): In 2001, following a wide-ranging undercover operation, DOJ indicted Tyson Foods on 36 counts, including several counts that Tyson violated 8 USC § 1324 by causing unauthorized aliens to be brought into the country and causing unauthorized aliens to be transported in the United States. Tyson took the case to trial and was acquitted on all counts.
- Wal-Mart (2005): In 2005, the government alleged that Wal-Mart had not taken sufficient precautions with respect to a contract janitorial service that used unauthorized workers to clean Wal-Mart stores. Wal-Mart settled the case for $11 million and agreed to institute a model compliance program.
- IFCO Systems (2008): In 2008, Immigration and Customs Enforcement (ICE) detained over 1,100 unauthorized aliens at IFCO Systems plants in 26 states. IFCO resolved charges with DOJ by signing a non-prosecution agreement and agreeing to settle all civil and criminal claims by forfeiture and monetary payment in the sum of $20.7 million.
- Eurofresh (2011): In 2011, Eurofresh, a tomato producer, pled guilty to hiring unauthorized employees and forfeited $600,000, which represented the revenue the company had received from the unlawful conduct.
- ABC Professional Tree Service (2012): In 2012, ABC Professional Tree Services, Inc. forfeited $2 million to DHS and agreed to adhere to revised immigration compliance procedures after DHS agents determined that almost 40 percent of the company’s workforce was unauthorized.
- HerbCo International Inc. (2012): In 2012, an herb supplier pled guilty to knowingly hiring illegal aliens and was sentenced to five years of probation and $1 million in criminal fines.
Best Practices for Employers to Minimize Immigration-Related Exposure
In light of the current focus on immigration-related crimes, employers should take steps to review and strengthen compliance practices in several important areas:
- Review and update company response protocols in the event that agents of DHS or other law enforcement agencies demand access to company premises, employees or documents, including designating internal and/or external legal counsel to be contacted in the event of such an incident.
- Review hiring and I-9 protocols, and, if applicable, E-Verify practices, to ensure that company policy and practices are consistent with I-9 and anti-discrimination rules.
- Conduct an I-9 self-audit, preferably at the direction of in-house or external counsel, and put into place any necessary remedial measures.
- Consider instituting a tip line or other internal reporting system to provide employees with a mechanism to voice concerns about potential hiring-related misconduct.
- For employers who sponsor foreign national employees for work visas, ensure that all compliance protocols are up to date and properly implemented across the organization, particularly for H-1B and PERM green card processes.
- For companies who host foreign visitors, including foreign officials and company employees, consider establishing a formal protocol for the issuance of B-1 invitation letters.
- Assess the risk of potential future shortages in professional or skilled foreign national employees and perform any necessary contingency workforce planning.
- Ensure that processes to outsource employer functions to external providers comply with immigration-related anti-discrimination provisions, particularly in light of the Administration’s announced focus on “America First” hiring.