Although Congress continues to debate whether to enact a "comprehensive" immigration reform program, it has passed legislation that will focus on border security and immigration enforcement.  Millions of dollars have been appropriated for hiring of new Immigration and Citizenship Enforcement (ICE) agents and providing training, technology and equipment to existing ICE offices.

With these new agents and money, ICE is changing its focus to begin targeting both individuals and employers.  While ICE will continue to target violent felons who are illegally present in the United States, there will be an increasing focus on employers and industries that have historically attracted undocumented workers, such as construction, hospitality, and agriculture.  ICE will soon have an additional tool for selecting employers for inspection: data from the Social Security Administration (SSA) stemming from “No-Match” letters.  No-Match letters are sent to employers when they have employees whose names, dates of birth, and Social Security numbers do not match SSA records.

Because No-Match letters will now be used for immigration enforcement, new “safe-harbor” provisions for employers who receive “No-Match” letters, are expected to be released in the near future.  Such “safe harbor” provisions will allow ICE to target employers and at the same time “level the playing field” by providing employers with the rules of the game.

ICE’s new strategy also involves filing federal criminal charges against employers who knowingly employ illegal workers.  The statutory penalty for the felony offense of harboring illegal aliens is up to ten years in prison for each alien.  The misdemeanor offense of hiring or recruiting illegal aliens for employment is up to six months in prison and a fine of $3,000 for each illegal alien.  ICE is no longer limiting its penalties to civil fines.  Employers should now recognize that they will be the targets of investigations and ultimately may face not only severe fines, but also possible prison terms if they violate the immigration laws.

Employers should put into place an audit program for their I-9’s or review the program that is already in place.  Such audits should be conducted by people who were not involved with the original completion of the documents.  Checklists and protocols should be established on how to deal with “No-Match” letters when the new regulations are published.  While compliance with immigration laws is a significant concern, it must be balanced against the need to make sure that any remedial measures utilized do not provide a valid basis for a discrimination lawsuit.

If you have any questions about business immigration needs, please contact the author at posner@elarbeethompson.com.