On April 30, 2009, the Department of Homeland Security announced that it distributed new enforcement guidance to Immigration and Customs Enforcement. The new enforcement guidance emphasizes the Department’s focus on targeting employers who knowingly hire illegal workers and thereby cultivate illegal workplaces.
According to Ginger Thompson of the New York Times, the guidelines state that "ICE must prioritize the criminal prosecution of actual employers who knowingly hire illegal workers because such employers are not sufficiently punished or deterred by the arrest of their illegal work force." ICE will also be looking for evidence of worker mistreatment, identification document fraud, trafficking, smuggling, harboring and money laundering. Susan Carroll of the Houston Chronicle reports that “The guidelines require that field agents have either an arrest, indictment, search warrant –or at least a commitment from the U.S. Attorney’s office to prosecute the employer –before arresting employees for civil violations at the work site.”
Given the heightened targeting of employers by the Department and the increased possibility of criminal prosecution, employers should train their hiring officials to ensure they understand the importance of hiring only workers legally authorized to work in the U.S. Employers should also conduct periodic I-9 audits to ensure that all employees have proper documentation authorizing them to work in the United States. Finally, employers may also consider whether voluntary enrollment in the E-verify program is appropriate for their operations. By taking these proactive steps, employers may be able to avoid the imposition of harsh monetary penalties and criminal prosecution.