The Biden Administration is ending worksite raids to catch unauthorized workers, according to a memorandum issued last week by Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security.

In doing so, the Biden Administration is reversing a Trump Administration practice, which often resulted in the arrests of large numbers of unauthorized workers. The Biden Administration policy will focus on “exploitative employers” who hire unauthorized workers and who fail to comply with labor standards, such as the wage and hour laws. In a memorandum to the U.S. Citizenship and Immigration Services, Immigration and Customs Enforcement, and U.S. Customs and Border Protection, Secretary Mayorkas said, “We can most effectively protect the American labor market, the conditions of the American worksite, and the dignity of the individual by focusing our worksite enforcement efforts on unscrupulous employers.” He also said that raids “misallocated enforcement resources” and were sometimes used for retaliatory purposes, such as when workers “cooperat[ed] in workplace standards investigations.”

Secretary Mayorkas indicated that policies will be adopted to achieve the following goals:

  • Reduce the demand for “illegal employment” by placing more harsh penalties on employers and their agents.
  • Encourage workers to report their employers’ violations of the law and workplace standards.
  • Create more effective coordination between the DHS and other agencies, including the U.S. Department of Labor, the U.S. Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.

The checkered history of immigration raids

On March 6, 2007, under the George W. Bush Administration, ICE conducted a raid on a leather factory in Massachusetts. The raid was criticized for disrupting families and separating parents from their children. As a result of the criticism, the Bush Administration backed away from using immigration raids as an enforcement tool. Under the Obama Administration, ICE focused on I-9 audits and penalizing employers rather than arresting unauthorized workers. However, the Trump Administration did use raids, including one in 2018, when ICE inspected 100 7-Eleven stores and arrested 21 unauthorized workers. The Biden Administration is expected to take immigration enforcement back to the pre-Trump approach.

Impact on employers

Clearly, employers who violate labor standards as well as immigration law by hiring unauthorized workers are going to be targets under the new policies. However, it is unclear what violations will cause an employer to be considered “exploitative.” Thus, the best advice for all employers is to comply with the immigration laws and with applicable labor standards. Because the new policy and strategy are aimed at employers who hire unauthorized workers, employers must ensure that they are complying with their obligations under the Immigration Reform and Control Act of 1986.

Under the IRCA, an employer is prohibited from doing any of the following:

  • Hiring, employing, or continuing to employ an individual, knowing that the individual is not authorized to work in the United States.
  • Hiring any individual, including a U.S. citizen, for employment in the United States without verifying his or her identity and employment authorization on Form I-9.

The IRCA imposes significant civil penalties for each person and for each violation and, potentially, criminal penalties where an employer engages in a “pattern or practice” of hiring or recruiting, or where an agent refers for a fee individuals who are not authorized to work in the United States. Criminal penalties can include fines of up to $3,000 for each unauthorized alien with respect to whom such a violation occurs, or up to six months in prison for the entire pattern or practice, or both.

Other non-IRCA provisions of immigration law provide more serious criminal penalties for egregious conduct often found during raids, such as evidence of trafficking, smuggling, harboring illegal aliens, document and visa fraud, and money laundering. Penalties include significant jail time, fines, and property forfeitures from the gains of the illegal behavior. An employer facing such charges would need the counsel not only of an immigration lawyer, but also of a criminal defense lawyer.

In addition to providing general advice about immigration matters, Constangy’s Immigration Practice Group conducts preventive I-9 audits, and represents employers in connection with IRCA or other immigration-related investigations.