As most employers know, it has been illegal since the enactment of the Immigration Reform and Control Act (“IRCA”) in 1986 for U.S. employers to employ individuals who are not authorized to work in the United States and to fail to verify the employment eligibility of every new worker using a Form I-9. For many years, there was virtually no criminal enforcement aimed at employers. What little enforcement existed was accomplished administratively, through I-9 inspections and the issuance of fines. Even then, fines were generally limited in size and open to negotiation. Since its establishment in 2003 in the wake of 9/11, however, U.S. Immigration and Customs Enforcement (“ICE”) has employed more aggressive methods of punishing violators, relying heavily on worksite raids that result in criminal charges, asset seizures, administrative arrests, and deportations.

To make the point, for example, on May 22, 2007, agents with ICE and the Social Security Administration (“SSA”) raided a poultry plant in Butterfield, Missouri, arresting 100 suspected illegal immigrants. Likewise, in March 2007, ICE raided Michael Bianco, Inc., a military goods factory that was a party to government contracts. Three hundred sixty immigrants were taken into custody. Months after the raid, the president of the company agreed to pay a fine and serve up to 18 months in prison, pleading guilty to several charges, including hiring illegal aliens, helping to shield them from detection, failing to pay overtime, and fraudulently misleading the government. The company was fined $1.5 million.

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