DHS ANNOUNCES NEW WORKSITE ENFORCEMENT PROCEDURES

 In response to Congress’ recent failure to pass long-anticipated immigration reforms, this month the Department of Homeland Security ("DHS") announced a package of changes in its campaign to step up border security, interior enforcement protocols, worksite enforcement procedures, guest worker programs and immigration and assimilation measures.

 Most significant for employers is the DHS’ new “Safe Harbor” regulation setting forth specific steps employers must follow (and time-frames for those steps) upon receiving information from the government that one or more employees may not be authorized to work in the United States. The regulation was finalized and issued on August 15, 2007 and goes into effect on September 14, 2007.

 Here’s how the new regulation fits into the existing immigration compliance picture. For the past 20 years, it has been a crime and a civil offense for an employer to knowingly employ (or continue the employment) of any person who is not authorized to work in the United States. The law established the I-9 employment verification procedure to ensure that employers make the appropriate inquiry of all job applicants prior to hire. Despite these obligations, DHS estimates that the number of illegal aliens working in the US has increased nearly ten fold and that employers are not heeding their hiring obligations.

 The new regulation, which was initially proposed by the DHS in June 2006, sets up a specific process for employers to follow upon receipt of a so-called “no-match letter” from the Social Security Administration (“SSA”) or similar inquiry from DHS. According to DHS, these types of inquiries place an employer on notice that something may be awry with the employee’s status. In the past, there was no penalty for ignoring these inquiries. The new regulation changes all that. Now, employers who turn a blind eye to one of these government inquiries can be charged with knowledge that the employees in question are working illegally.

 Though employers were expected to address no-match issues prior to this regulation, there was no explicit time-frame or course of action specified. The new regulation provides specific steps and timelines an employer must take to avoid the imputation of knowledge that the employees in question are working illegally.

 The DHS announcement also included reference to plans for stepped up worksite enforcement. DHS believes that employment is still the magnet that draws illegal aliens to the US and that one of the keys to stemming the tide of illegal immigration is employer compliance. The new regulation will raise the ante for those who chose not to do so by increasing the fines by 25%. The Administration will also continue to expand its use of criminal investigations. According to DHS, Arrests by U.S. Immigration and Customs Enforcement have increased from just 24 in FY 1999 to a record 716 in FY 2006. There have been 742 criminal arrests since the beginning of FY 2007 (through July 31).

 The DHS also has announced that in the upcoming months, it will be reducing the number of documents employers will be permitted to accept during the I-9 process, and will be expanding the use of “E-Verify,” the Federal Electronic Employment Verification System. Watch for future bulletins on these important developments.

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