Getting Aggressive: Federal Immigration Enforcement by Craig T. Trebilcock |
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The Federal government continues to struggle with an inability to deal with the complexities of our national immigration policy. With gridlock on the issue in Congress and a presidential election year in progress, history indicates that significant increases in workplace raids and inspections can be expected in 2008. Prior to the last presidential election, a marked increase in enforcement activity by the Immigration and Customs Enforcement (ICE) branch of the Department of Homeland Security occurred.
Immigration is likely to be a hot button topic in the 2008 presidential campaign. Congress has settled into two rival camps, with the economy’s growing need for professional workers to supplement the declining U.S. workforce being held hostage to the politics surrounding whether or not to legalize the nearly 13 million undocumented persons who currently reside in the country.
Unfortunately, immigration workplace enforcement will not be business or politics as usual in 2008. The primary change coming out of Washington is the decision to use criminal enforcement methods and penalties against managers and corporate executives instead of imposing nominal fines for hiring undocumented workers as was the case in the past. Employers will need to emphasize with their managers and human resource departments strict compliance with U.S. immigration laws.
Tens of millions of dollars have been allocated in the federal budget for increased immigration enforcement – a situation that had not existed in the recent past. The federal government is using these funds to recruit and hire additional immigration enforcement officers – many of whose prior experience was in drug law enforcement. This is leading to a change in tactics involving immigration officials utilizing techniques such as sending informants wearing listening devices into workplaces and seeking employment. If the government obtains evidence that management is knowingly acquiescing in the hiring of illegal workers, the government is now seeking arrest warrants and pursuing criminal charges against those who knowingly engage in such activity. This change in focus, tactics and enforcement means that company officers and senior management are advised to appropriately educate their personnel responsible for hiring and maintaining company records relative to hiring.
The scope of the illegal immigration issue in this country is so large that federal enforcement agencies recognize that they cannot possibly detain and deport all of the illegal workers, despite political rhetoric to the contrary. Rather, they know that their greatest opportunity for success is in high profile enforcement through raids and arrests. This fact is not merely conjecture, but was openly discussed during the 2007 American Immigration Lawyers Association national conference, where representatives of the Department of Homeland Security discussed their enforcement program. While these issues are extremely serious, it is important for company officials not to overreact to a government enforcement initiative. The best defense against being a target of such enforcement is conscientious completion of the Forms I-9 at the time of hiring; a prompt and thorough response to any social security mismatch letters that the company may receive (notices from SSA that a worker’s name and social security number do not match); and not ignoring the situation if it becomes apparent that undocumented workers are employed. On the other hand, employers must be careful not to single out for undue scrutiny employees or job applicants based upon their nationality, ethnicity or other characteristics that could open up the company to Title VII discrimination complaints.
Unfortunately, current immigration policies place many employers in a no-win situation. If they attempt to enforce the hiring laws too vigorously, they risk suit in civil court by aggrieved workers and applicants. If they do not enforce them with sufficient stringency, companies risk becoming a target of federal enforcement actions. A careful and conscientious balance between the two extremes is required to avoid problems from either direction.
National immigration laws are tied to many domestic factors, including the strength of the economy and perceived terrorism threats, as well as external factors such as armed conflict or natural disasters within our hemisphere. As such, it is difficult to predict with any certainty where national policy will travel on the immigration issue over a significant period of time. However, it is clear that U.S. immigration laws and policy are in serious need of reform.
Significant reform, however, is extremely unlikely before a new president and Congress are seated in 2009. In the interim, the executive branch will likely attempt to appear engaged in meaningful immigration policy by conducting workplace enforcement raids. Therefore, employers need to conscientiously attempt to minimize their exposure to this risk.
Looking forward, 2009 is expected to be a significant year in terms of immigration policy. The federal government has already indicated its intent to replace the Form I-9 employer-based hiring system with an online electronic verification system that has been used for the past several years under a pilot project. Under this new system, employers will transmit prospective workers’ information electronically to the government, which will in turn reply as to whether the worker is authorized. This type of program represents the future direction of immigration hiring, though in the near term significant problems with implementation can be expected due to inaccuracies in the government’s databases and limits on the system’s ability to handle the large number of workers that will be impacted.
The other issue high on the agenda for 2009 will be the need to reach some accommodation between the demographic pressures of increased demand for more foreign workers in the U.S. economy (brought on by internal shifts of population within the U.S. and an anticipated wave of boomer retirements) and the ongoing problem of illegal immigration into the United States. While the politicians alternatively avoid or engage this debate, the best approach for business managers is to ensure their companies’ current compliance with U.S. immigration and hiring laws, and, where appropriate, to make known to their representatives in Congress their ongoing issues finding adequate numbers of qualified workers under current U.S. economic realities and immigration restrictions.
If you have any questions regarding immigration enforcement issues, a review of company policies and procedures, or any other immigration related matters, please contact the author.
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