Morton Announces Record Increase in Worksite Enforcement Activity

[Editor’s Note: today’s blog is courtesy of Kevin Lashus of Jackson Lewis LLP]

Yesterday before testifying before the House Committee on the Judiciary, Subcommittee on Immigration Policy and Enforcement, John Morton—Director of Immigration and Customs Enforcement (ICE)—announced record numbers of worksite enforcement investigations, criminal prosecutions, and administrative-fine-awards.

As the investigative arm of the US Department of Homeland Security, ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration.

A primary part of its internal immigration enforcement effort is ICE’s pursuit of employers that recruit, hire, and continue to employ unauthorized foreign nationals.  ICE’s comprehensive worksite enforcement strategy is focused on deterring unlawful employment.  ICE believes its increased investigative activity will have the effect of driving all employers toward instituting fairly conservative standard operating procedures to cultivate a culture of compliance with the nation’s immigration-related employment laws.  In his testimony, Morton indicated that the Administration is focused on conducting criminal investigations and prosecuting employers who exploit the verification system or abuse their employees.

As of September 17, 2011, ICE instituted 3,015 administrative/criminal investigations—a 54% increase over the FY2008 numbers.  In FY2010, ICE arrested and criminally prosecuted 196 owners, HR managers, and executives—a 45% increase over FY2008.  ICE refused to release statistics on those employers subject to potential criminal prosecution who negotiated with ICE or the various US Attorneys to instead enter into deferred prosecution agreements.

In FY2011, ICE issued a record 2,393 Notice of Inspection (for federal Forms I-9 and supporting documents), a more than 375% increase from the number issued in FY2008.

This year, ICE issued 331 final administrative fine orders totaling more than $9M in fines levied on employers compared to 18 final orders issued totaling $675k in FY2008.  In addition, FY2010  worksite investigations resulted in a record $36.6M in judicial fines, forfeitures, and restitution.

“Enforcing our immigration priorities and obligations is neither simple nor easy, and we are committed to getting it right.  We all agree that we need fair, consistent, and enforceable immigration laws that encourage the free flow of commerce while respecting both security and the rights of individuals,” Morton said.

Employers need to remain vigilant—employment verification compliance requirements are onerous.  Employers with multi-state locations need to also be aware of supplemental state verification compliance requirements.  To the extent that ICE will need to review an employer’s Forms I-9 prior to coming to a conclusion about the rate of employment of unauthorized foreign nationals, all employers are at risk.  Now is the time to minimize exposure.