On January 25, 2017, the President signed Executive Order 13768, Enhancing Public Safety in the Interior of the United States, and on February 20, 2017, DHS issued its corresponding implementation memo. These rules stipulate that undocumented immigrants who so much as commit “acts that constitute a chargeable offense” - even if the immigrant has not been charged, let alone adjudicated - have been “prioritize[d] for removal.” So, too, are those who, “in the judgment of an immigration officer, otherwise pose[s] a risk to public safety or national security.”
So, what does that mean for you, an employer or business owner in sectors or industries that regularly hires foreign nationals? The fact is that such sweeps are not new and are not limited to seeking out employees. The Department of Labor, in conjunction with the Department of Justice and the Internal Revenue Service, have joined with ICE to implement its Worksite Enforcement (WSE) program through which it targets “employers, owners, corporate managers, supervisors and others in the management structure of a company for criminal prosecution through the use of carefully planned criminal investigations.” Indeed, it has been DHS policy to “prosecute the targeted employer before arresting employees ... [.]” (Emphasis added.) If you are caught violating these laws, you can be imprisoned, fined up to $4,300 per undocumented worker, and debarred from receiving government contracts - even for a first offense.
While the prior administration saw a drop-off in such employer-centered prosecutions, giving what critics have referred to as “amnesty” for business owners, commentators are predicting that there will be a turnaround in the rate of these higher level enforcement actions, particularly in light of comments by now-Attorney General Sessions, such as
“I do believe that if you continually go through a cycle of amnesty that you undermine the respect for the law and encourage more illegal immigration into America.” [and]
“For 40 years, no president and no attorney general have given a high priority to enforcing our immigration laws.”
To the extent that is about to change, Shulman Rogers’ lawyers Joel Schwartz and Russell Duncan of the White Collar and Government Enforcement Group are here to help. For instance, we have:
- Persuaded the Justice Department and the DHS’ National Security & Joint Terrorism Task Force not to prosecute our client, a local Pakistani business owner suspected of conspiring with employees and a local immigration attorney to use his business to illegally sponsor foreign nationals.
- Successfully represented Israeli-national business owners targeted in cross-border immigration fraud conspiracy to bring illegal workers into businesses spread across the United States. We obtained an outcome that kept them out of prison and allowed them to remain in the country. This investigation was jointly operated by the Department of Labor's Office of Racketeering and Fraud Investigations, the Human Rights and Special Prosecutions Section of the Justice Department and the State Department Diplomatic Security Service.
- Prevailed in a sentencing argument in a federal district court case that caused the judge to not impose severe “Sentencing Guidelines” sanctions that would have punished our client based on the number of undocumented workers he employed in a “smuggle, transport or hire” investigation.
Finally, because the President’s executive order allows for removal activity without a formal criminal charge and generally imbues street-level immigration officials with broad discretion, the risk of corporate espionage between competitors becomes real. The point is this - if you own or run a business that employs foreign nationals in any great number or percentage, you should be ready if ICE shows up at your workplace door - and we can help you do that.