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backGLOBALtalk December, 2011

USA: ICE Continues Its Worksite Enforcement Strategy

On October 19, 2011, Department of Homeland Security Secretary Janet Napolitano testified before the Senate Judiciary Committee on the agency's immigration enforcement activities. The clear message from Secretary Napolitano is that Immigration & Customs Enforcement (ICE) will focus on "employers who knowingly and repeatedly hire illegal labor," with methods such as "utilizing robust Form I-9 inspections, civil fines, and debarment, and enhancing compliance tools like E-Verify."

Since FY 2009, when the Obama Administration took office, ICE "has audited more than 6,000 employers suspected of hiring illegal labor, debarred 441 companies and individuals [from government contracts], and imposed more than $76 million in financial sanctions." These civil enforcement statistics are far higher than in any previous administration. In FY 2011 alone, "ICE also criminally arrested 221 employers accused of violations related to employment, an agency record."

ICE continues to focus on companies utilizing large numbers of semi-skilled and unskilled workers, companies in "critical infrastructure" industries, and those immigration-related activities that pose national security concerns.

An unstated component of the ICE strategy appears to be to seek opportunities to either: (1) enroll prominent, "name brand" companies in the voluntary ICE Mutual Agreement between Government and Employers (IMAGE) compliance program, or (2) take enforcement actions against "name brand" companies alleged to have violated the immigration law. The ongoing investigation by ICE and the U.S. Attorney's Office for the District of Columbia into the Chipotle Mexican Grill restaurant chain is an example of the latter enforcement tactic.

It is apparent from both the immigration enforcement proceedings in which we are engaged, and public statements from DHS and ICE, that worksite enforcement will continue to be an enforcement risk for most U.S. employers. ICE for the most part has engaged in reasonable treatment of companies that have taken voluntary measures to enhance their immigration compliance. While E-Verify enrollment is the most common of such measures, it is not a requirement, and alternative compliance measures with similar objectives are possible. E-Verify enrollment has increased significantly in 2011, and the program now boasts over 292,000 employer members. IMAGE enrollment, on the other hand, has not increased at a comparable rate.

In light of these enforcement trends, Companies employing individuals in the United States should design and implement solid immigration compliance programs to mitigate enforcement risks, and should consult with counsel to ensure that an efficient but effective immigration compliance system is in place.

Source: Baker & McKenzie - GAI

For more information or to contact Baker & McKenzie, please click here.

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