ForConstructionPros.com

The Immigration and Customs Enforcement, or ICE, is the agency within the Department of Homeland Security charged with enforcement of our nation's immigration laws. Today, when an employer has to deal with ICE, it is rarely fun and almost always expensive. This is especially true for construction contractors.

In the spring of 2006, the Bush Administration announced a major change in immigration enforcement. Then DHS Secretary Michael Chertoff announced that DHS and Immigration and Customs Enforcement (ICE) would begin using criminal sanctions to prosecute employers that knowingly employed illegal workers. For the next two and a half years, enforcement was conducted by means of investigations by interagency task forces that involved ICE, IRS, DOL, state and local law enforcement, and sometimes even the FBI and DEA. These enforcement efforts cost a lot of money; therefore, the pressure was on the government agencies to produce results. This in turn led to highly publicized raids or sweeps that were very disruptive to employers, families and local communities.

The Obama Administration believes that the "collateral damage" to families and local communities is too costly, and as a result, the nature of immigration enforcement is changing. Instead of massive sweeps and "crack of dawn" raids, ICE has turned to I-9 paperwork inspections as the principal enforcement tool. For example, on July 1, ICE sent Notices of Inspection to 652 US businesses. On November 19, ICE Assistant Secretary John Morton announced that another 1,000 U.S. employers would be receiving Notices of Inspection commencing enforcement action. These paperwork audits will likely result in civil money penalties, but in extreme cases can also result in criminal sanctions.

Employers should not be lulled into a false sense of security just because they have not yet received a Notice of Inspection. Neither ICE nor DHS is ruling out site visits for enforcement purposes, and unfortunately, small business entrepreneurs remain at risk. This is especially the case in the restaurant, hospitality and construction industries where ICE has a history of criminal prosecution of employers for immigration violations. Construction employers face an even greater risk insofar as they are engaged in infrastructure projects, i.e. work on military bases, airports, harbors, power plants, roads and bridges, etc.

Construction jobsites are sometimes viewed as "easy pickings" by ICE because jobsites are often open, fairly easy to seal off or surround, and do not involve a risk of interfering with other businesses that are not the focus of enforcement. In addition, ICE views the construction industry as having historically employed large numbers of illegal workers; therefore, today's contractor is viewed with suspicion.