May 07, 2009

Immigration Enforcement Shifts to Employers

Last week, the Department of Homeland Security announced that it had issued new guidance to Immigration and Customs Enforcement ("ICE"). The new marching orders: Focus on employers, not employees. The press release on the new rules says that, effective immediately, worksite enforcement resources will be focused on the criminal prosecution of employers who knowingly hire unauthorized workers, "to target the root cause of illegal immigration."

The press release points out that previous efforts resulted in many more arrests of workers than employers. Of the more than 6,000 arrests ICE made in 2008 as part of its worksite enforcement program, 135 were employers, managers, and human resources personnel. The rest were the workers themselves.

Just as ICE is refocusing its efforts on employers, the Supreme Court took away one of its tools for prosecuting workers. The workers arrested by ICE often face criminal charges relating to their use of false identity information. Prosecutors could also tack on the charge of aggravated identity theft, which carries a two-year sentence extension, if the worker knowingly used someone's else's identification. According to the New York Times, prosecutors used the threat of that additional punishment to convince workers to plead guilty to lesser charges, such as document fraud.

Earlier this week, the Supreme Court held that the crime of aggravated identity theft requires the alleged thief to know that the identification information he or she is using actually belongs to someone else. In other words, a worker can no longer be charged with aggravated identity theft simply for making up a Social Security number; the worker must know that the number belongs to another person.

See The Essential Guide to Federal Employment Laws, by Lisa Guerin and Amy DelPo (Nolo), for detailed information about what's required of employers in verifying that employees are legally authorized to work in the United States.