The Department of Homeland Security (“DHS”) has announced a new workforce enforcement strategy for immigration, focusing on the criminal prosecution of employers who knowingly hire unauthorized workers. A Fact Sheet issued by the DHS announcing the change explains that the current administration considers such employers to be “the root cause of illegal immigration.”

The Fact Sheet notes that only 135 of the more than 6,000 arrests related to worksite enforcement last year were employers, and the announcement indicates that ICE will be shifting its focus and resources away from a heavy reliance on workplace raids targeting illegal workers and towards the criminal investigation and prosecution of employers who are willfully violating immigration law. The DHS Fact Sheet does state that “ICE will continue to arrest and process for removal any illegal workers who are found in the course of these worksite enforcement actions,” while also emphasizing that “all available civil and administrative tools, including civil fines and debarment,” will be used against employers who are found to be knowingly employing workers who are not authorized to work in this country.

Updated worksite enforcement guidance is being issued to Immigration and Customs Enforcement (“ICE”) offices, but additional details have not yet been made public. We will have further information as soon as it is available. In the meantime, employers should review their current hiring practices to ensure that they meet all current immigration law requirements, and should avoid making dramatic changes that might be viewed as unlawful discrimination based on citizenship, race or national origin.

Following proper Form I-9 procedures as part of the hiring process continues to be an employer’s best way to ensure immigration law compliance. These procedures and practices include:

  • Having every new hire complete Section 1 of the Form I-9 before work begins (employers are reminded to use the latest version of the Form I-9; the current version as of the date of this E-lert bears the revision date, “02/02/09,” in the lower right-hand corner).
  • Asking each new employee to choose and produce appropriate documentation from the I-9’s “List of Acceptable Documents” to establish his/her identity and eligibility for employment within 72 hours after he/she begins work (and preferably before the employee begins work).
  • Completing Section 2 of the Form I-9 for every new employee within 72 hours after he/she begins work (and preferably before the employee begins work).
  • When a new employee is only authorized to work in the U.S. for a limited period of time, noting the date on which the employee’s work authorization will expire and implementing a system to ensure that (a) the employee’s work authorization is “reverified” before the expiration date or (b) the employee is separated from employment when the original employment authorization expires if authorization has not been renewed by that date.
  • Keeping a properly completed I-9 on file for every current employee AND for every former employee for three years after the employee’s date of hire or one year after the end of employment, whichever is later.

An issue, relevant to federal contractors, is the status of the Bush administration’s E-Verify regulations. Under the regulations, many federal contractors would be required to verify the immigration status of all employees working on the contract through E-Verify, an online system tied to Social Security and DHS databases that is presently available to employers on a voluntary basis. The government has postponed implementation of the mandatory E-Verify requirements until June 30, 2009, to allow the Obama administration more time to review the requirements and in deference to a lawsuit challenging the regulations that is pending in federal court.