Immigration Law Advisory - Employers Beware: Department of Homeland Security Steps Up Worksite Enforcement Efforts

Worksite enforcement of immigration laws regarding the hiring and employment of foreign workers has not been a high priority of the Department of Homeland Security (DHS”), until now.  U.S. Immigration and Customs Enforcement (“ICE”), the agency within DHS tasked with investigating violations and enforcing the Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C. §1324a, has recently adopted a much more aggressive approach.  ICE has replaced the former Immigration and Naturalization Service’s (“INS”) reliance on administrative hearings and fines with a much tougher combination of criminal prosecutions and asset forfeitures.  Between October 2005 and March 2006, ICE arrested more than 2,100 unlawfully employed aliens and seized millions of dollars in cash and assets from employers.  Criminal arrests of alleged non-compliant employers have increased from 24 in Fiscal Year 1999 to 176 in Fiscal Year 2005 and to a record 382 so far this fiscal year.  The number of indictments and criminal convictions has also increased significantly.  To enhance ICE’s worksite enforcement efforts, the Bush Administration’s 2007 budget request seeks $41.7 million in new funds and 171 additional agents and 35 support personnel dedicated solely to worksite enforcement investigations. 

As Julie Meyers, Assistant Secretary for ICE, states: “While most employers want to do the right thing, those who don’t should know that they will face the full array of the agency’s law enforcement tools and authorities.”  All employers, therefore, no matter the size or diversity of their workforce, should ensure that they have an effective compliance program and policy in place which is consistently applied, or risk adverse consequences from a visit from ICE agents.

The Law:  IRCA prohibits employers from knowingly hiring or continuing to employ persons not authorized to work in the United States.  IRCA applies to every person hired, whether a U.S. citizen or foreign national, and requires the employee to complete, date, and sign Section 1 of Form I-9, Employment Verification Form, including name, address, date of birth, and Social Security number, and indicate whether a citizen, lawful permanent resident or an alien with time-limited employment authorization, and the expiration of such authorization.  Within three business days of the date of hire, the employee must present the necessary documents to verify employment eligibility.  The employer must ensure that the documents are on the list of acceptable documents and review the documents to confirm that they appear to be genuine and consistent with other information provided by the employee.  The employer must then enter the relevant information in Section 2 of the Form I-9, and sign and date the form.  If reverification of employment authorization is indicated by the expiration of employment authorization on a particular date, the employer must reverify the employee’s employment authorization on that date and enter the new expiration date on Section 3 of the Form I-9.

Actual or Constructive Knowledge:  An employer may have actual knowledge or constructive knowledge that an employee is not authorized to work in the United States.  Constructive knowledge is defined under IRCA as “knowledge which may be fairly inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition.” 8 C.F.R. §274a.1(1).  Constructive knowledge includes situations where an employer fails to complete Form I-9; has reliable information available to it that would indicate the alien is not authorized to work; or acts with wanton and reckless disregard by using an independent contractor relationship to introduce an unauthorized alien into its workforce. 

Liability for Independent Contractors:  Employers are not required to verify the employment eligibility of persons defined as “independent contractors” under IRCA.  Regulations list several factors which must be taken into consideration in determining whether an employee is an independent contractor, such as whether the individual or entity supplies the tools or materials; makes services available to the general public as opposed to just the employer; works for a number of clients at the same time; has an opportunity for profit or loss as a result of labor or services performed; invests in the facilities for work; directs the order or sequence in which the work is to be performed and/or determines the hours during which the work is to be done.  Employers cannot delegate functions normally handled by employees to independent contractors to avoid responsibility for I-9 verification.  At a minimum, employers should insert a clause in their agreements with independent contracting companies to impose upon the contractor the duty to comply with IRCA and any and all other state and federal employment laws and also to require indemnification for any fines or legal fees incurred by the employer because the independent contractor’s employees are not authorized to work in the United States.  Employers may also contractually require independent contractors to furnish copies of I-9s and other documentation for workers brought on site.

Conclusion:  ICE takes its responsibilities as the largest law enforcement agency in DHS seriously.  Employers should carefully select and train personnel tasked with the IRCA compliance aspects of recruitment and hiring.  These personnel should have a thorough understanding of the employer’s obligations under IRCA.  Employers who do not have an effective compliance program and policy, or whose personnel do not consistently follow their company’s program or policy when verifying the employment eligibility of each new hire, risk fines, sanctions, or worse under ICE’s aggressive enforcement program.  Steptoe & Johnson’s Immigration Attorneys can assist employers in developing compliance programs and policies, review existing programs and practices to ensure they meet each IRCA requirement, audit I-9 files and advise personnel tasked with implementing compliance programs and policies.  An effective compliance program and policy, developed and implemented with the assistance of immigration counsel, will minimize liability for violations of IRCA and help employers navigate in this new world of active enforcement of once-ignored employer sanctions. 

If you would like additional information or assistance, please contact Lynda Zengerle at (202) 429-8170, lzengerle@steptoe.com, or Joan Claxton at (202) 862-3891, jclaxton@steptoe.com.