Don’t expect the Obama administration to be in a hurry to roll out its plans for comprehensive immigration reform. In fact, blueprints to secure some type of legal status for millions of illegal alien workers may be shelved until 2010. Still, the new administration can and likely will do a lot to adjust worksite enforcement policies that were developed in the past eight years.

Expect a decline in worksite raids

As the Bush administration wound down, there was a noticeable decline in worksite raids across the country. The number had risen sharply from 2005 through 2008. A brief hiatus is to be expected as the government prepares for the first administration change since 9/11, but the rate of employer raids should stay below levels of the last two years.

The media will focus attention on the cabinet positions such as the change from Michael Chertoff to Janet Napolitano at the U.S. Department of Homeland Security, but other lower level changes will do more to drive the number of worksite raids down in 2009.

First, expect to see new faces in senior management at U.S. Immigration and Customs Enforcement. The new personnel will have different policy and enforcement objectives. Worksite raids won’t disappear entirely, but the overall tactics and priorities will adjust such that there will be fewer handcuffed workers shipped off in buses following large-scale raids.

Second, expect to see worksite enforcement drop as a priority for U.S. attorneys across the country. Large-scale raids require the direct participation of and significant resources from federal prosecutors. The U.S. Justice Department will want to focus more resources on other matters such as securities and tax fraud, violent crime and drug cases. These changes will result in worksite raids being used on a more limited basis for true “bad actor” employers versus how the program was expanded in the last few years of the Bush administration.

Expect a shift back to administrative enforcement

ICE will still have a significant budget and a healthy dose of personnel devoted to immigration compliance. The agency has built up a backlog of data from hundreds of I-9 audits conducted in recent years. Many of those audits were done with plans for possible raids or federal prosecutions that never materialized. As ICE and U.S. attorneys focused heavily on raids and criminal law sanctions, it became rare to see an employer pursued in administrative proceedings for civil fines based on I-9 errors.

Expect that to change. ICE will likely serve more Notices of Intent to Fine to seek I-9 penalties in administrative proceedings based on some of its backlogged I-9 audit findings. On newer investigations, ICE likely will return to using its I-9 audit, subpoena, arrest and employer sanctions prosecution authority in 2009. As a result, more cases will be prosecuted before administrative-law judges, with a gradual decline in the number of immigration cases being docketed in federal district court. Expect ICE to focus on at least a handful of national employers in targeted industries and to seek some high fines for companies with systemic I-9 errors.

Expect illegal alien arrests to continue to rise

Worksite raids will likely decline in 2009, but the rate of illegal alien arrests should increase.  Why?  Because people who are expected to fill the second- and third-tier positions at ICE and other allied agencies will be less focused on making headline-grabbing arrests of busloads of workers and more focused on:

  • The ICE Fugitive Operations program, centered on arresting illegal aliens with outstanding deportation orders and criminal-arrest warrants.
  • Illegal alien gangs and other crime syndicates, including those involved in human and drug trafficking.
  • Prioritizing worksite cases involving worker exploitation or broader criminal law violations (including tax fraud and widespread wage and hour violations).
  • Reserving raids and criminal sanctions for employers who are complicit in hiring workers and illegal alien workers engaged in identity or benefits fraud.

These priority changes will let ICE focus more attention on its broader border and national security objectives. There’s also a growing consensus that large-scale worksite raids provide a poor return on the government’s investment.

What this means for employers

Pork industry employers can expect ICE enforcement efforts to become more tactical under the Obama administration. The threat of a large-scale raid on a major facility, for example, is likely to decline in 2009. Instead of marshalling resources from many agencies to try to arrest dozens or hundreds of workers at one facility, ICE can keep the compliance pressure on by dispatching a handful of agents to that employer’s door several times during the year. While immigration will likely remain high on the compliance agenda, it should move away from the business-busting raids of recent years to a more measured focus on I-9 audits, arrest warrants for specific workers being investigated for fraud or criminal law violations, and follow-up on identity-theft cases. 

To succeed with comprehensive immigration reform, the Obama administration will first need to achieve some traction for the national economy. But the president must also learn from his predecessor. If the new president hopes to convince Americans that sweeping reform is in the national interest, his administration must show a consistent commitment to border security and worksite enforcement of immigration laws.

Enforcement will refocus under the new administration, but it won’t go away. Employers maintaining high-quality employment verification procedures should be able to manage the risks and costs in 2009. Employers who don’t will continue to face the risk of high penalties and raids. PE

Scott Wright, head of the Faegre & Benson LLP immigration law practice, has 20 years of experience advising and representing employers in the meat and agribusiness industries. You can reach him at swright@faegre.com or (612) 766-7772. For more, go to www.faegre.com.