New DHS Worksite Enforcement Guidelines

On April 30, 2009, the Department of Homeland Security announced new worksite enforcement guidelines. Under these guidelines, Immigration and Customs Enforcement (ICE) will reduce its prior focus on detaining, deporting and prosecuting illegal workers, and emphasize the investigation and prosecution of employers who knowingly hire illegal workers.

 According to its Fact Sheet, "Effective immediately, ICE will focus its resources in the worksite enforcement program on the criminal prosecution of employers who knowingly hire illegal workers in order to target the root cause of illegal immigration."

ICE states that its officers will be looking for the following during its investigations of employers: "Evidence of mistreatment of workers, along with evidence of trafficking, smuggling, harboring, visa fraud, identification document fraud, money laundering, and other such criminal conduct."

In the event such evidence is discovered, ICE will then "obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. Attorney's Office (USAO) to prosecute the targeted employer before arresting employees for civil immigration violations at a worksite."  Finally, ICE will also "use all available civil and administrative tools, including civil fines and debarment, to penalize and deter illegal employment."

For the business community, any changes will likely be incremental. During the last two years, ICE has used aggressive criminal investigation and prosecution tools on certain companies and industries. The DHS announcement promises more of the same, particularly for those entities that were previously the target of ICE worksite enforcement.

It seems likely that large-scale worksite enforcement actions will be curtailed, and any employees found without work authorization during such actions are less likely to be subject to criminal prosecution.

However, criminal prosecution of suspected employment of unauthorized aliens will remain the focus of ICE, and may even increase, and the probable reinstitution of civil proceedings against employers, all but abandoned since ICE was formed in 2003, could increase the number of companies (and industries) subject to immigration liability risk. The number of ICE I-9 audits has increased noticeably in the last six months.

A copy of the DHS release may be found by clicking here: