November 2018

Over the last several months, the immigration landscape in the U.S. has changed significantly. Consequently, the risk for employers related to hiring practices has increased. On April 11, 2017, Attorney General Jeff Sessions (“AG Sessions”) issued a memo to all federal prosecutors entitled “Renewed Commitment to Criminal Immigration Enforcement.” The memo directed federal prosecutors to increase prosecution efforts and make certain immigration offenses a high priority. This included an increased focus on those “bringing in and harboring certain aliens” under 8 U.S.C. § 1324; specifically, those who harbor three or more undocumented persons. Because most immigration offenses are civil offenses, they have traditionally been handled administratively through the federal immigration court system and not through criminal enforcement. However, this new Department of Justice (“DOJ”) policy seeks to leverage existing statutory authority to criminally prosecute immigration offenses.

This was evidenced by dozens of pre-dawn raids of 7-Eleven stores launched by the Bureau of Immigration and Customs Enforcement’s (“ICE”). The raids ensnared 98 stores and resulted in the arrests of 21 people, constituting the biggest crackdown on a company suspected of hiring undocumented workers since President Trump took office.

Thomas Homan, the then-acting head of ICE’s Homeland Security Investigations (“HSI”), proclaimed the raid “is what we’re gearing up for this year and what you’re going to see more and more of is these large-scale compliance inspections, just for starters.” He further warned “from there, we will look at whether these cases warrant an administrative posture or criminal investigation.”

Hiring or “harboring” illegal individuals is a federal crime pursuant to Title 8 Section 1324.  Given the priorities set forth by AG Sessions, federal prosecutors will likely focus efforts on those who harbor illegal aliens. 7-Eleven is a prime example. The memo also directed prosecutors to consider felony prosecution under 8 U.S.C. § 1325 (“improper entry by alien”) in cases where a defendant has two or more prior misdemeanor improper entry convictions.  Section 1325 criminalizes those who know—or should know—of the fact that an alien entered illegally. The memo further directed prosecutors to focus on 8 U.S.C. § 1326 (“reentry of removed aliens”), 18 U.S.C. § 1028A (“aggravated identity theft”) and 18 U.S.C. § 1546 (“fraud and misuse of visas, permits, and other documents).

In addition to criminal enforcement against employers, ICE has ramped up immigration worksite enforcement. Starting earlier this year, ICE’s HSI served 5,200 notice of inspection (“NOI”) on business owners to audit their hiring records to determine compliance with the immigration law. HSI reports that carrying out its commitment to increase the number of I-9 audits is an effort to create a culture of compliance among employers. HSI’s worksite enforcement strategy focuses on criminal prosecutions of employers who knowingly break the law, while the use of I-9 audits and civil fines is to encourage compliance with the law.  According to HSI, worksite investigations often involve additional criminal activity, such as alien smuggling, human trafficking, money laundering, document fraud, work exploitation and substandard wage and working conditions.

Once served with an NOI, employers are given three business days to produce the company’s I-9 records, and ICE will then conduct an inspection to determine the company’s compliance. If an employer is not in compliance, the inspection will typically lead to the assessment of civil fines and penalties, and could lead to criminal prosecution if the employer is found to be knowingly violating the law. Further, workers found to be unauthorized during the inspection are subject to termination and removal from the country. Thus, employers not in compliance with the immigration laws run the risk of significant financial harm—between civil penalties and the disruption to the business—should a significant number of employees be determined to lack proper work authorization. In 2017 alone, businesses were ordered to pay close to $100 million in judicial forfeitures, fines and restitution and $8 million in civil penalties.  These numbers are only expected to increase in the coming years based on ICE’s enforcement priorities.

To add to the growing immigration concerns, the DOJ enforcement efforts are becoming increasingly more aggressive. This past April, AG Sessions issued another memo for prosecutors along the Southwest Border titled “Zero-Tolerance” for offenses under 8 U.S.C. § 1325(a). Under this zero-tolerance policy, AG Sessions made clear that anyone and everyone apprehended while entering the U.S. should be prosecuted to the fullest extent possible.

The message is clear: whether at the border, the worksite, or anywhere in the U.S., the DOJ will not tolerate illegal immigration. Businesses can no longer stick their heads in the sand and it has never been more important for companies to implement and maintain vigorous compliance programs. If companies are not more cautious, they run the risk of being the next 7-Eleven.