Introduction

• Author: Charles M. Miller/Daniel Brown/Marcine Anne Seid
• Profession: Founding partner of the Miller Law Offices, Studio City, California/Partner in Fragomen, Del Rey, Bernsen & Loewy LLP's Washington, D.C./Principal attorney of the Seid Law Group, Palo Alto, California
• Pages: 19-25

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Introduction

The idea for Immigration Compliance and Best Practices came from the co-authors’ law

practices and research. We found that there were few immigration compliance resources

for employers with considerable immigration employment compliance responsibili-

ties. Federal Acquisitions Regulation (FAR) government contractors and Securities and

Exchange Commission (SEC) reporting companies are held to the highest of standards

of immigration compliance. FAR contractors, for example, are required to participate in

E-Verify, the Department of Homeland Security (DHS)’s electronic employment authori-

zation verication system. They must have a compliance program and abide by rules that

forbid the hiring of unauthorized employees. Knowingly hiring or continuing to employ

such persons carries a severe potential penalty—debarment from their federal contracts.

Since the enactment of the Immigration Reform and Control Act of 1986 (IRCA),1 it

is axiomatic that employers have the responsibility of utilizing the prescribed employer

verication system to check the identity and employment authorization of newly hired

employees. Employers must verify and maintain I-9 forms according to DHS regulations.2

IRCA established an administrative civil and criminal penalty system that has been

the ostensible deterrent for employers to adhere to the I-9 verication and records mainte-

nance system. At various times in IRCA’s enforcement history, there has been an emphasis

on the civil system of penalties; at other times, criminal enforcement was the program of

choice to convince employers to comply with IRCA’s immigration employment laws.

Immigration and Customs Enforcement (ICE) provides employers with informa-

tion concerning worksite enforcement activity on its website.3 ICE worksite enforcement

1. Immigration Reform and Control Act of 1986 (Nov. 5. 1986), Pub. L. No. 99-603, 100 Stat.

3359; sanctions provisions are codied within the Immigration and Nationality Act at section

274A(a)(l)(A), 8 U.S.C. § 1324a(a)(1)(A). Hereinafter cited as INA or the Act.

2. The Immigration and Naturalization Service (INS) was the primary agency responsible for the

administrative enforcement of the employer sanctions laws until the Homeland Security Act of 2002

created the successor enforcing entity, Immigration and Customs Enforcement (ICE), a component

agency of the Department of Homeland Security (DHS). Pub. L. No. 107-296. Title IV. Subtitles C-F,

116 Stat. 2135 (Nov. 25, 2002).

3. https://www.ice.gov.