On August 22, 2008, federal agents and police temporarily shut down a condo construction site at Honokawai, Maui and arrested twenty-two illegal immigrant workers. On July 20, U.S. Immigration and Customs Enforcement (ICE), Department of Homeland Security (DHS) arrested 43 Mexican workers employed in Hawai‘i by The Farms, an agricultural business. In May, 22 suspected illegal workers were arrested at two restaurants on Maui. In December 2007, 19 foreign workers were arrested on immigration charges at a downtown Honolulu construction site and a Halawa warehouse. These arrests are examples of the nationwide enforcement actions being taken against illegal workers and their employers by DHS/ICE as part of its “comprehensive immigration enforcement strategy for the nation’s interior.” As stated by DHS Secretary Chertoff, “Hard-hitting interior enforcement will reinforce the strong stance we are taking at our borders. . . .We will aggressively target the growing support systems that make it easier for aliens to enter the country and find work outside of the law. This department will counter the unscrupulous tactics of employers with intelligence-driven worksite enforcement actions and combat exploitation by dangerous smuggling organizations with the full force of the law.”

Although the brunt of such enforcement has in the past fallen on the illegal workers, DHS/ICE is now actively prosecuting employers as well. In 1999, there were only 24 criminal cases brought for worksite violations. In 2006, the number had risen to 716 criminal charges brought against employers for employing illegal workers, and the number continues to grow.

Under U.S. immigration law, it is unlawful for anyone to knowingly “hire, recruit or refer for a fee” individuals who are not legally authorized to work in the United States, even if this is done through contractors or subcontractors. In addition to facing civil penalties, employers can also face a wide range of criminal charges, including harboring illegal aliens for commercial advantage, aiding and abetting, money laundering, and conspiracy to avoid income taxes. Violators face fines, years of imprisonment, and seizure and forfeiture of money and property, in some cases totaling millions of dollars. Accounts of such cases are published in the news releases on the ICE website, www.ice.gov.

An employer’s first line of defense is the I-9 Employment Eligibility Verification process. Although the government is now pushing its new “E-Verify” system, it is the I-9 process that is mandated under U.S. immigration law. Compliance with I-9 procedures and record keeping is not difficult, but the task should be delegated to responsible human resources personnel who are trained in I-9 compliance. The I-9 files should be periodically reviewed, especially in the case of foreign workers whose employment authorization documents may have expiration dates. If the review reveals missing or incomplete information, the employer should immediately obtain the missing information and/or documents.

Employers must retain the I-9 forms for at least three years after the date the person is hired or one year after the person's employment is terminated, whichever is later. Additional information on I-9 Employment Eligibility Verification and the government's new E-Verify program can be found on the U.S. Citizenship and Immigration Services website.