The Department of Homeland Security has shifted its sights from the illegal laborers who sneak into the country to the American employers who hire them. The shift makes it especially critical that employers ensure that their compliance programs are effective.

Homeland Security announced on April 30, 2009, that it is now directing federal agents to focus more on arresting and prosecuting employers. New field guidelines, circulated to special agents at U.S. Immigration and Customs Enforcement, transfer the emphasis from workplace raids, aimed at rounding up individual undocumented workers, to imposing fines and criminal charges against employers who break the law.

The guidelines lay out a strategy for penalizing employers who knowingly hire undocumented workers and deterring those tempted to hire them. Immigration agents are instructed to look for evidence of money laundering, mistreatment of workers, trafficking, smuggling, and identification fraud.

Among the most significant of the new guidelines is one in which agents are instructed to "obtain indictments, criminal arrest or search warrants, or a commitment from a U.S. attorney's office to prosecute the targeted employer, before arresting employees for civil immigration violations at a work site." The guidelines call on agents to seek civil penalties, including fines and disbarment from federal contracts, in cases where they do not have enough evidence to press criminal charges. In addition, at least 14 days before conducting a raid, the relevant field office must notify Immigration and Customs Enforcement headquarters with information including a proposed strategy for prosecuting the employer.

This approach marks a change from that of the Bush administration, which aimed raids almost entirely at workers and were conducted largely on the basis of tips that an employer was hiring illegal workers, which prevented development of necessary evidence to bring charges against the employer. Now, Homeland Security Secretary Janet Napolitano has outlined ways to build a case against a business that hires illegal workers. Investigative tools include auditing documents employees fill out when they join a company, having illegal workers go undercover, and talking to people who regularly interact with the employers.

In light of the revamped field guidelines, it is important that every employer reassess the effectiveness of its compliance programs and take steps to protect itself from possible criminal investigations. To inquire about the protections available to your company and its employees, or about the ramifications of these changes to you or your organization, please contact Henry E. Hockeimer, Jr., at 215.854.8204 or of the White Collar/Investigations Group.

Copyright © 2009 by Ballard Spahr LLP.
(No claim to original U.S. government material.)

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