The Issue

Increased immigration worksite enforcement is happening and will likely continue to expand in scope for the foreseeable future. For the past several weeks, the Trump Administration has implemented an enhanced and expanding focus on detaining and removing undocumented foreign nationals from the United States. Homeland Security Investigations (HSI), the federal agency primarily charged with executing the Administration’s immigration enforcement agenda, is engaged in a nationwide effort to detain and deport individuals in the U.S. without authorization. To make the point more forcefully, U.S. Attorney General Pam Bondi issued a detailed policy memo in February instructing federal prosecutors to use all available legal options to “combat the flood of illegal immigration” into the country. 

A Deeper Dive

One tool to deter undocumented workers from entering the country that was expressly referenced in the Attorney General memo involves the prosecution of employers under section 1324 of the Immigration and Nationality Act (INA) which prohibits “harboring aliens.” An employer, or anyone for that matter who provides assistance (including financial assistance) to an undocumented immigrant, may be deemed to violate section 1324 by employing undocumented workers knowingly or with reckless disregard for the fact that the person lacks work authorization.  

Employers found guilty under section 1324 are subject to fines and criminal penalties of up to 5 years in prison. While this provision of law has not been widely used to prosecute employers in the past, its specific reference in the Attorney General memo is a clear signal that businesses employing undocumented workers face not only the civil fines imposed for violating the employment verification provisions of the INA, but also the prospect of criminal liability based on the harboring provision. 

For example, in February the owner of a Texas bakery that employed eight undocumented workers was charged under the harboring statute and now faces a criminal trial. Because “Border Czar” Tom Homan has repeatedly indicated an intent to use section 1324 against anyone assisting undocumented foreign nationals to remain in the United States, it is likely that this bakery owner may among the first, and far from the last, to face a harboring charge.

What Employers Need to Know

First and foremost, the risks associated with employing individuals without authorization have risen exponentially. HSI’s worksite enforcement activities will likely be limited only by their staffing and resource capacities and no employer should consider itself immune to government site visits or Form I-9 inspections.

It is essential that employers engage in a strategy of prevention, preparation and protection. Prevention consists of regular audits of Form I-9 records to ensure full compliance with the law. Some employers may also wish to consider enrolling in E-Verify, the government’s online system for verifying employment authorization.  Preparation involves ensuring that, in the increasingly likely event that a business is the subject of a Notice of Inspection or subpoena, there is an established and thoroughly communicated procedure for dealing with government agents requesting access to the company worksite and/or I-9 records. Prevention entails having a communications plan for employees, customers and the public to mitigate any adverse reaction to the investigation and ensure business continuity. 

With an increased focus on government site visits, Form I-9 inspections and an increased emphasis on prosecutions under section 1324, prudent employers are encouraged to take appropriate action now to protect their business, their workforce and themselves. 

If you are interested in obtaining more information about how best to prepare for increased HSI worksite enforcement, please reach out to your Meltzer Hellrung attorney for a consultation.