Based on a somewhat innocuous Department of Justice (DOJ) memo subject line, worksite enforcement is expected to increase drastically, including an increase in surprise worksite visits and increased I-9 Notices of Inspections with subpoenas and criminal and administrative worksite-related arrests. But the memo content reveals a major DOJ policy change – the DOJ, including the U.S. attorneys and staff at all 94 federal judicial districts in the United States, will prioritize immigration enforcement and expand their use of all available criminal statutes to address illegal immigration activity in the country.
It’s important to note that this expansion is for all available criminal statutes – the expansion is not limited only to immigration laws. Recent estimates claim there are over 5,000 federal statutes and 300,000 regulations that can result in criminal penalties.
Indications are that the immediate goal is to increase the number of removals of individuals, whether by self-removal or U.S. government removal. The targets of this new policy of expanded use of all criminal statutes will likely be undocumented persons or workers. Even so, under current law, U.S. employers can be charged with criminal offenses for employing an undocumented employee or knowingly allowing contractors or staffing agencies to employ undocumented workers.
The new directive includes:
- Nationwide DOJ Focus and Accountability. All U.S. Attorneys’ Offices are to prioritize criminal immigration-related violations and to provide regular reports of the number of investigations, arrests, pleas, removals, convictions, and more.
- Information Gathering, Investigation, and Charges. The DOJ must now keep track of and regularly report every referral of a potential criminal investigation, by agency, including matters arising out of ICE-issued notices of inspection and Form I-9 audits, raids, registration and fingerprinting requirements for non-citizens, firearm registrations, victims and informants, trafficking, gang activity, harboring, unlawful employment, document fraud, improper entry/reentry, other agency investigations, and facts related to all criminal statutes.
- Expanded Scope of Sources of Data and Investigation. Information and other support from state and local agencies for these enforcement initiatives, and the DOJ will investigate and potentially prosecute state or local parties who resist or obstruct these enforcement initiatives. The FBI’s Joint Terrorism Task Force, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and others are also directed to work with the DOJ and Department of Homeland Security (DHS) on these initiatives.
Current Employer Obligations
Since 1986, all U.S. employers have had an affirmative obligation to verify that their employees are legally able to work in the United States. This employment verification Form I-9 program, and the authority of the U.S. government to investigate and prosecute, is intended to create a culture of compliance by enlisting responsible employers of every size and description to prevent the hiring of undocumented workers and doing so in a nondiscriminatory manner. Even so, the system is not perfect; mistakes and violations do happen.
Historically, if an employer completes a Form I-9 for an employee and continued the employment after the work authorization expired, a civil fine was imposed on the employer for knowingly employing an undocumented worker. If an employer fails to prepare the Form I-9 or knows the worker is not authorized for work, under the law, the employer can be criminally charged.
Immigration and Customs Enforcement (ICE), the division of DHS in charge of enforcement of immigration law, also must regularly (in some cases daily) report data on the number of arrests, removals, and more. ICE does not currently have the personnel to meet the President’s goals for removing undocumented persons. This DOJ policy change is intended to shore up the efforts of ICE by adding to the effort all DOJ and other agency personnel and all criminal statutes enforced by the DOJ.
Impact on Employers
Many employers will potentially be impacted by the loss of workers because of this new and expanded policy – not just from those industries known to rely on immigrant workers, such as agriculture, construction, manufacturing, hospitality, and services.
Any employer can receive a notice of inspection, and even if there are no fines, a notice can result in a loss of some or all workers. This can and has caused some employers to close their doors.
Employers that provide foreign nationals with housing or transportation may be charged with the crime of harboring if they know the workers are not documented, fail to complete the Form I-9, or take false documentation.
It is a crime for an employer to obstruct a government investigation. In an immigration matter, a criminal obstruction violation can occur when a person, including an employer, lies to or blocks a federal agent, warns workers of an upcoming government agent visit, or hides or disguises workers.
For a successful criminal case against an employer under the immigration laws, the prosecutor must have evidence that the employer’s representative had actual knowledge of the unauthorized employment. A reasonable basis to initiate an investigation could include evidence of the employer’s representative knowing about an undocumented worker’s use of a fake name or fake/stolen/shared document, failure to complete a Form I-9, an employer moving undocumented workers to 1099 contractor status, or an employer moving undocumented workers to a third-party vendor that provides the same undocumented workers to the employer.
Few employers have been criminally prosecuted without a broad, systematic violation of immigration law or abuse of workers, in part because for the employers that do complete the Form I-9, the law does not require employers to be immigration document experts.
Today, though, is different. The DOJ has been instructed to use all criminal statutes to address immigration. The U.S. attorneys and ICE are now required to frequently and regularly report their statistics – to produce evidence of their efforts on this priority. While some might consider this DOJ announcement merely “messaging” by the Administration, no employer wants to be the target of a criminal investigation, and certainly not the poster child on this issue.
Potential U.S. Attorney Actions
DHS recently deputized over 600 IRS workers. The IRS can now share its records and information about undocumented workers in the United States, including employer names. If facts appear suspicious, a U.S. attorney may investigate to learn if the employer violated 8 U.S.C. § 1324(a), a criminal statute that bars aiding and abetting, a crime that can lead to criminal prosecution. Section 1324(a) defines several distinct offenses related to aliens: smuggling of an alien, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, engaging in a conspiracy, or aiding and abetting any of these acts. The law is not limited to entry into the country; it is a criminal violation when a person knowingly or recklessly encourages or induces an undocumented person to remain in the United States.1 Chances of a criminal accusation are especially likely when there is financial benefit to the alleged violator.
COBRA provides a way for workers and their families to temporarily maintain their employer-provided health insurance during situations such post-employment. An employer is to report to the IRS if the employer’s offer of COBRA continuation coverage or post-employment coverage to a former employee is due to termination of employment. COBRA is not available to undocumented workers because these workers are not considered “eligible employees” under most employer health plans, but the specific eligibility will depend on the employer’s plan details and state laws. If an employer offers COBRA to a worker that is terminated because of a lack of employment authorization,2 the reported COBRA information may raise concerns about an employer and a U.S. attorney may look to see if the employer is in violation of 8 U.S.C. § 1324(a).
The U.S. Department of Labor may prosecute employers that willfully violate wage-and-hour laws under the Fair Labor Standards Act, including criminal prosecution and imprisonment for a second conviction (along with asset seizure). A U.S. attorney might be especially interested in learning more facts about an employer after a second conviction and the legal status of the employer’s work force.
What Employers Can Do Now
To avoid or reduce the odds of civil or criminal prosecution, employers should first conduct an audit to at least ensure that they have a Form I-9, with valid employment authorization information, for every current employee. Second, depending on the circumstances, the employer may need to properly correct any errors on these Forms I-9, including only doing so with the advice of counsel. Third, employers need to be aware and prepare for when the work authorization of certain persons will expire in one fell swoop. Additional action items depend on specific facts and circumstances.
Endnotes
- On June 23, 2023, the Supreme Court ruled in United States v. Hansen that the federal criminal offense of encouraging or inducing an alien “to come to, enter, or reside in the United States” unlawfully is not facially overbroad in violation of the Free Speech Clause of the First Amendment.
- While not technically considered a crime, failing to report and implement COBRA can result in significant penalties for the employer.
You can subscribe to future advisories and other Alston & Bird publications by completing our publications subscription form.
If you have any questions, or would like additional information, please contact one of the attorneys on our Immigration team.