Immigration Enforcement Under Napolitano: A 180 Degree Shift To Employers
President Obama made it clear that his immigration plan, among other things, was to "remove incentives to enter illegally." However, the Obama administration has not provided any details as to how is going to accomplish this portion of its plan. This has not only created a good amount of speculation, but also a good deal of frustration among U.S. employers. Yet, in spite of lacking details, the Obama administration has sent out "immigration signals" and U.S. employers should be prepared.
The most important of these immigration signals, perhaps, was Secretary Napolitano's appointment as head of the U.S. Department of Homeland Security (DHS). The appointment reveals some of the most basic immigration strategies of the administration's plan. This is not only part of a well calculated move, but, as it would appear, the foundational step necessary to set President Obama's immigration plan in motion.
Secretary Napolitano is considered a smart and demanding attorney with an intense work habit and a quick grasp for bureaucratic detail. A twice elected Governor of Arizona and a former Attorney General and U.S. attorney, she is not only a pragmatist who signed the toughest state immigration law in the nation, but also a politician with clear enforcement views. She is one of the most experienced state executives in the nation in the immigration arena and one of the very few high ranking democrats qualified, should one be enacted, to handle a comprehensive immigration reform loaded with compliance and enforcement requirements.
She has repeatedly called for a "technology-driven border control" and the penalizing of employers hiring undocumented workers.
Secretary Napolitano has indicated that her approach, in terms of immigration raids, will be to closely watch the design of the operations and that the focus will be on "unscrupulous employers" rather than on undocumented workers. She has also stated that raids will continue where undocumented workers are present and that she expects to increase the focus on ensuring that employers "of unlawful workers are prosecuted for their violations."
Moreover, Napolitano has pledged to increase the focus on criminal punishment for employer violators and to encourage them to work with federal immigration agents to "establish sound compliance programs that prevent unlawful hiring." She also aims to continue boosting manpower on the borders and the use of technology. At the same time, she has stated that her full intention is to enforce these methods in a fair manner across borders, ensuring that the law is applied. This, of course, represents a 180 degree shift from the Bush administration's approach to immigration enforcement, which sought to penalize undocumented workers, rather than prosecute employers.
In short, comprehensive immigration reform, whether in piece-meal or in one whole act, will be enacted. Employers will continue to be raided, but enforcement actions are likely to conform to those prescribed under immigration law rather than the "DEA-type" actions with all their inefficiencies and social negative effects seen under the Bush administration. Under Secretary Napolitano, possibly in association with other governmental agencies (i.e. IRS, USDOL, SSA, etc.), the number of government audits and the so called ICE "inspections" will continue and, possibly, increase. Investigations conducted by the FDNS (Office of Fraud Detection and National Security) to detect, deter, and combat immigration benefit fraud to strengthen USCIS' goals and efforts will also increase. Technology based programs such as E-verify will rule and many could become mandatory for all U.S. employers. Immigration attorneys will be well served by advising their corporate clients to put their immigration compliance (i.e. I-9, public access and audit files, etc.) houses in order.
Hector A. Chichoni practices in the areas of US and global immigration law. He is the South Region Chairperson of the Immigration Law Group and a Partner at Epstein Becker & Green, P.C. He is a frequent speaker and commentator on immigration issues. Hector can be contacted at firstname.lastname@example.org.
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