Federal Government Focused on Criminally Prosecuting Employers
for Hiring Illegal Aliens
On April 30, 2009, the U.S. Department of Homeland Security (DHS) announced that as part of its efforts to enforce immigration laws in the workplace, it will focus its resources on the criminal prosecution of employers who knowingly hire illegal workers. To that end, the DHS agency responsible for enforcing worksite immigration laws, U.S. Immigration and Customs Enforcement (ICE), recently issued Notices of Inspection to 652 businesses nationwide (more than the entire amount of notices issued last year). These notices alert businesses that the federal government will inspect their hiring records (i.e., Form I-9s) to determine whether they are in compliance with eligibility verification laws. DHS is touting this enhanced audit initiative as the first phase in a “long-term strategy to address and deter illegal employment.”
Employers are required by law to complete and retain a Form I-9 for all workers. The form requires employers to review identity documents to determine whether they appear to be reasonably genuine and related to the individual. Employers not in compliance with these laws are subject to civil and increasingly, criminal penalties.
As the federal government accelerates efforts to reduce illegal immigration, it has placed increased pressure on the private sector. Workplace immigration laws, many of which have been in place for years, are now being enforced more stringently. This poses significant challenges for businesses (even those who operate in good faith), because there is a fine line businesses must navigate in order to comply with immigration law on the one hand, and employment and civil rights laws (e.g., prohibitions against discrimination) on the other. To complicate matters, different agencies within the federal government monitor businesses’ actions in this area, and each has different responsibilities. Depending on how these different agencies enforce hiring laws, the requirements for employers can become unclear.
Baker Botts has assembled a team of lawyers with significant experience in this area to provide counsel on compliance, investigations and enforcement:
- Joe Caldwell - has represented clients in more than 100 jury trials and chairs the firm’s Litigation Department in the Washington, D.C. office
- Frances Fragos Townsend - head of the firm’s Global Security and Corporate Risk Counseling Practice, is the former Homeland Security Advisor to President George W. Bush and a former federal prosecutor in Manhattan
- Dennis Duffy - the first general counsel for the U.S. Office of Compliance, is the chair of the firm’s Labor and Employment Practice
- Katrin Schatz - represents clients in I-9 audits and other labor and employment compliance matters
- Chad Boudreaux - is the former Deputy Chief of Staff for the U.S. Department of Homeland Security, where he oversaw immigration matters on behalf of the Office of the Secretary
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