Broad Overview : Employers Face Changes in Immigration Enforcement Climate  Posted Oct 26, 2009
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In the months since the Obama Administration took office, the immigration enforcement climate has changed dramatically. The changes have been brought about partly by the economic downturn, and partly by the new administration’s desire to substantially revise Bush-era immigration policies. On the economic front, rising unemployment and the scarcity of new jobs have put increasing pressure on the Obama Administration to vigorously enforce immigration laws, in an effort to protect the U.S. workforce.
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At the same time, the Obama administration is at pains not to repeat the controversial enforcement practices of the prior administration. The prior practices were typified by the May 2008 raid on Agriprocessors, Inc., a kosher meatpacking firm in Postville, Iowa. In that raid, the U.S. Department of Immigration and Customs Enforcement (ICE) arrested 389 undocumented workers. Many of these undocumented workers agreed to be deported as part of a plea bargain, after being criminally charged with aggravated identity theft for their use of false documentation to secure employment.
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Controversy of Holdover Policies
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The Agriprocessors case remains controversial, here and abroad, for what many perceived to be heavy-handed enforcement techniques, which appeared to favor speed over due process. President Obama disagrees with this approach, and his administration is currently overhauling the immigration-enforcement system, shifting away from Bush-era prosecutions of individual workers arrested in workplace raids, to investigations and prosecutions of the employers who hire undocumented workers.
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What Precisely Has Changed?
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With immigration reform efforts stalled for the moment, pending the outcome of the health care debate, changes to immigration enforcement are taking place at the agency level, rather than through legislative restructuring. Three key agencies have made administrative changes that could have important consequences for employers relying on foreign workers. This analysis is made available as a service to MurthyDotCom and MurthyBulletin readers, so they may make the necessary adjustments.
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ICE Focus on Employer I-9 Compliance

At ICE, there is a new emphasis on employer compliance with I-9 requirements. Under long-standing I-9 procedures, employers must ensure that each worker on the payroll has documented his/her U.S. employment authorization. Enforcing employer compliance has become a cornerstone of ICE’s strategy to reduce the number of undocumented workers in the United States.
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DOL Focus on LCAs
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At the U.S. Department of Labor (DOL), although the underlying law hasn’t changed, DOL is changing its approach to enforcement. The DOL is intensely scrutinizing compliance with the terms of the labor condition applications (LCAs) that employers must obtain before hiring foreign employees under the H1B program. The LCA is intended to assure that the foreign national’s work in the U.S. will not harm the wages or working conditions of U.S. workers.
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USCIS Hones in on H1B Applications
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For its part, USCIS is now giving heightened scrutiny to H1B applications, with a greater role for the Fraud Detection and National Security division (FDNS), which is now well-funded and active. In 2005, Congress imposed a $500 Fraud Prevention and Detection Fee that H1B and L visa applicants must pay when seeking their initial visas. Under the Bush Administration, these fees were collected to support FDNS and its mission, to investigate fraud in the H1B system. Until recently, FDNS has been behind the scenes, playing what appears to have been a relatively small role in federal immigration enforcement. Financed with fees collected during the Bush years, but up to now, mostly unspent, FDNS has become an active force in the DHS’s immigration enforcement efforts.
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Coordination Between Agencies
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Along with enhanced enforcement at ICE, DOL, and USCIS, the agencies are increasingly coordinating their efforts and pooling resources to give more searching examination of LCA and H1B applications, wage and hour requirements, and I-9 compliance. The stakes are considerable for employers who find their companies under investigation. Employers are required to cooperate with ICE and provide access to the I-9 records of their companies. In the event that ICE discovers problems in the course of an I-9 compliance investigation, an employer may be required to take corrective action to remedy deficiencies in its I-9 procedures. Violations can lead to civil penalties, including fines for each violation found, and also may lead to criminal penalties. One investigation of an employer can trigger other agency investigations and increased scrutiny of petitions filed with the USCIS, originating from that employer.
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Conclusion
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Given the new focus of immigration enforcement efforts, employers must take special care to comply with the many requirements imposed by federal immigration law. The best insurance against an investigation, and potential penalties, is to be prepared, taking steps now to shield your company from problems in the future. The experienced attorneys at the Murthy Law Firm stand ready to advise you, both on day-to-day compliance matters and in the unfortunate event of an investigation.